M'Clelland v. Robertson

Subject_1 Feu-Contract Subject_2 Obligation of Feuar Subject_3 Clauses of Re-payment and Indemnity. Facts: A feued certain steadings of ground under an obligation to pay to the superior one-half of the expense of forming and constructing such common sewers or drains as the superior might have already formed, or which he might thereafter form, in a street ex adverso of his feu; and to repay to the superior one-half of the price of the formation of said streets so far as already formed. The sewer Page: 571 ↓

The pursuer had in 1852 become sole proprietor of the ground originally belonging to him and the said James Lumsden, and by the feu-contract of 1873 he feued to the defender the parts therein described, which were thereby declared to be feued and conveyed always with the whole privileges and the whole burdens, conditions, provisions, and servitudes inter alia created by the said agreement between him and James Lumsden and the said John Bain.

The Sheriff-Substitute ( Erskine Murray ) decided in the pursuer's favour, on the ground that as Bain did the work under an obligation incurred by him to the pursuer for a consideration granted by the pursuer, Bain's execution of the work must be held as pursuer's execution thereof, and that therefore the pursuer was entitled to charge therefor as done by himself.

The Sheriff, on appeal, recalled the judgment of his Substitute, and assoilzied the defender for the reasons stated in the following note appended to his interlocutor:—

“ Note .—The question here is one purely of law, the parties being agreed upon the facts, and the defender's procurator having admitted at the bar that if he is liable in any sum to the pursuer the amount sued for is correct.