A landlord may, currente termino, not only sequestrate, but likewise roup the hypothecated effects of his tenant, if insolvent.
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Sherris, the tenant of a farm belonging to Sir Archibald Grant, had been, in an action founded on the act of sederunt 1756, decerned to remove from his possession at Whitsunday 1783; but having previously sown his own corn, he became entitled to reap the crop of that year, for which one half of the rent was payable at the ensuing term of Martinmas, and the other at Whitsunday 1784.
In November 1783, the landlord presented a petition to the sheriff of the county, setting forth, That the tenant had already sent part of his corn off the farm, and craving warrant “ for immediate sequestrating, and also rouping as much of the crop as would pay the rents claimed, credit of the roup price being given to Whitsunday next, the last conventional term of payment.”
The sheriff ordered the petition to be served on the tenant, who failed to make any appearance; upon which he awarded the sequestration, but confined his warrant for rouping to such part of the corn as was equivalent to the rent “ already due and payable.”
The landlord brought the sheriff's judgment under review by bill of advocation; when the following interlocutor was pronounced by tho Lord Ordinary on the bills: “ Having considered this bill of advocation, the Lord Ordinary is of opinion, that the sheriff of Aberdeen has committed no iniquity; and therefore refuses the bill.”
The landlord reclaimed to the Court; but no answers to his petition were given in, the tenant having still declined to appear.
The Court desired, of the sheriff's-depute of the several counties, information concerning the practice in such cases. From their reports it appeared, that, in general, it was not customary to grant warrant for selling the subjects of the hypothec before the term of payment, though in some counties this had been done. The interlocutor of the Court, which did not seem to have been influenced by these reports, was the following:
“The Lords remit to the Lord Elliock, Ordinary, to remit the cause to the sheriff, with this instruction, That he grant warrant to roup as much of the corns sequestrated as shall be sufficient to pay the whole hypothecated rents and expenses; the produce of the roup to be lodged in the sheriff-clerk's hands, subject to the further orders of the sheriff.”
Lord Ordinary, Elliock.For the Petitioner, Solicitor-General.
Fol. Dic. v. 3. p. 291. Fac. Col. No 3. p. 5.
