Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. II.

Extent of hypothec upon stocking.

Henry Butter of Pitlochrie, and Others, Creditors of the deceased George Cumming, Sub-tenant of the lands of Colpach and Kilmorie,
v.
Duncan M'Vicar, Collector of the Customs at Fort-William, principal Tenant of these Lands

Date: 27 July 1764
Case No. No 13.

The landlord found preferable to creditors on the steel-bowstock of a tenant who died bankrupt.

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Collector M'Vicar having obtained from the Barons of Exchequer a tack of the lands of Colpach and Kilmorie, part of the annexed estate of Lochiel, subset them in May 1758, to George Cumming; and, by the subtack, M'Vicar lets, and in steelbow-tack and assedation sets, to Cumming, 30 milk-cows, 30 yeld cows, 15 stirks, &c. at a certain value: as also, 25 bolls white oats, 5 bolls bear, &c. to be delivered to him under comprisement, at a certain value, of the present standing crop on the ground, immediately before it be cut down; and delivering to him all the labouring utensils now at Colpach, conform to an inventory, and comprised at a certain value; and Cumming was obliged to redeliver to M'Vicar, at the expiry of the tuck, the said number of cattle, of the different kinds, species and qualities, of equal value as he now receives them, or the said agreed price of them; it being optional to M'Vicar to accept of the cattle under comprisement, or the agreed price, upon giving notice of his election, nine months previous to the term of removal; and to deliver back all the labouring utensils under a comprisement, or their value, as in the inventory; as also, the said number of 25 bolls white oats, &c. or the sum of ten merks Scots, for every undelivered boll of each kind, under the comprisement of the standing crop the year of removal; and it was agreed, that, in case one year's rent shall run into two, or that Cumming should be distressed by legal diligence, or his means and effects any how endangered, so as to prevent him from being in a capacity to perform the articles and conditions of the contract, then, and in that case, it should be in the power of M'Vicar to seize on the said cattle and corn brevi manu, and to apply the same to his own use, for extinction of all claims and demands whatever.

Cumming having died bankrupt in March 1762, Butter, and some of his other creditors, took out an edict, in order to get themselves decerned executors qua creditors to him, that they might affect his steelbow-stock; upon which M'Vicar appeared, and insisted, that he was preferable to them thereon; But the Creditors insisted, that he had no right of hypothec or preference upon it, but could only come in pari passu along with Cumming's Creditors.

The Commissary, in December 1752, found M'Vicar a preferable creditor to the extent of the sums claimed as the value of the steelbow-stock; upon which the cause was brought by bill of advocation before the Court of Session.

Pleaded for the Creditors; Steelbow corresponds to the contractus mutui in the civil law. The property of it is transferred to the tenant. It is upon his risk, he has the free disposal of it, and the heritor has only a personal action against the tenant for re-delivery of a like number and quantity, or payment of the agreed value; consequently it is poindable for his debts during his life, and must be confirmable by his creditors, as in bonis of him, after his death.

Lord Stair, lib. 1. tit. 11. § 4. considers steelbow a mutuum. “Things cannot fall,” says he, “under mutuum, which cannot be alienated, and which are not properly fungible; and I doubt not but oxen, kine, and sheep, are mutuable, as is ordinary in steelbow goods, which are delivered to the tenant with the land for the like number in kind at his removal.” In the same way Lord Bankton, lib. 1. tit. 12. par. 2. “In the case of steelbow, the property is transferred to the tenant, and the goods, after delivery, perish to him, or may be distrained or poinded for his debt.” And that the Court viewed steelbow in the same light, appears from several decisions; 4th November 1609, Boyd against Russell, observed by Haddington, voce Steelbow; 24th November 1624, Turnbull against Ker, Ibidem; 4th December 1638, Lady Westmoreland against Lady Home, Ibidem; and 28th January 1642, Dundas against Brown, Ibidem, all observed by Durie.

Pleaded for M'Vicar; The property of moveable goods may belong to one person, when the use and administration of them is committed to another; and particularly, in the case of an universitas or grex. An instance of this in the Roman law was the dos, the individuals of which were under the use and administration of the husband; but the property of the universitas remained in the wife; l. 30. Cod. de jure dotium; Voet. lib. 23. tit, 3. § 19.

A steelbow contract is when an heritor or tenant lets lands to his tenant or sub-tenant, with a stocking of cattle, and sometimes corn, straw, and other articles, for a joint rent, to be paid for the lands and the use of the goods; and the tenant is bound to restore the whole in equal good condition, or of equal value, at the expiry of the lease. Such contract is not a sale of these goods, but only a location of them for a certain time, and for a certain use. The tenant has a reasonable power of administration, by which, if he find it necessary, he may sell a horse or a cow, and put another in its place; but he must use his right tanquam bonus paterfamilias; and, if he was to sell unnecessarily, with a view of dilapidating the universitas, it is thought the master, even during the tack, might strike in, and prevent such alienation; and likewise, for the same reason, he might interpose to prevent the steelbow goods from being evicted by a creditor.

The contract of steelbow was not a mutuum, but a location of moveable goods to be possessed along with the lands let. Such goods are not ordinarily fungibles; cattle and utensils evidently are not; and though the corn, considered in itself, may be reckoned a fungible; yet, when considered as part of the universitas set in tack, it remains in so far the property of the master, that the tenant is obliged constantly to replace it, as much as he is obliged to replace the individuals of the other part of the stocking.

It is an established opinion, that, when lands are sold, especially by a rental, the property of the steelbow goes to the purchaser, though not mentioned in the disposition, which shows, that the property is understood to be in the master. Upon the same principle, it has been often found, that steelbow goods go to the master's executor, and fall in his single escheat; and, in one case, it was expressly found, that they did not fall under the tenant's escheat, but the heritor's, Dict. voce Steelbow. Nor was there ever an instance of the tenant's executors claiming these goods, nor would such claim be competent; Stewart's Answer to Dirleton's Doubts, voce Steelbow.

Whether the master falls to be considered as proprietor of the steelbow goods during the currency of the tack or not, it is established in practice, that he has a right to these goods preferable to the creditors of the tenant, as appears from a number of certificates from Highland gentlemen and tenants produced, in consequence of an interlocutor of the Court, allowing parties to adduce evidence by certificates, or otherways, of the practice of the country. The method of setting land with a steelbow-stocking is attended with many advantages, particularly in the Highlands and northern counties, where the tenants are generally poor; but, if it were to be found that the steelbow-stocking might be carried off by the tenant's creditors, and that the master had no more than a personal action for restitution of the value at the expiry of the tack, an end would be put to the practice of setting in steelbow.

“The Lords preferred Mr M'Vicar.”

For Butter, Lockhart. Act. Ilay Campbell. Fol. Dic. v. 3. p. 293. Fac. Col. No 144. p. 339.