The act of sederunt 1756, § 5. does not apply, unless the tenant be a full year's rent in arrear at the date of the decree; but the landlord is not obliged to accept of partial payments.
See No 110.
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John Low held a lease of a farm granted in favour of assignees. One half of the rent was payable on the 20th December, and the other on the 20th June, for the crop preceding.
Low assigned the lease to Alexander Wilson, who again assigned it to Andrew Knowles; and he reaped the crop, and was liable for the rent of the year 1793.
On the 26th June 1794, Low applied to the Sheriff, to sequestrate Knowles' effects, for payment of the rents for crop 1793 and 1794; and on the same day he instituted an action against him, on the act of sederunt 1756, concluding, that he should be ordained to find caution for arrears, and the rent of the five subsequent crops, or to remove from the farm. Wilson, who had received a partial payment from Knowles, had previously become bankrupt.
Low paid the rent to the landlord for crop 1793 in July 1794.
The sequestration, which was at first granted by the Sheriff, was recalled, on Knowles finding caution for the rents for 1793 and 1794. But the other action was afterwards insisted in; and decree of removing was ultimately pronounced by the Sheriff in February 1795; by which time Low had recovered payment of the rent for crop 1793, from the cautioner in the sequestration, from whom, likewise, in October 1795, he got the rent for crop 1794.
In an advocation, besides an argument on the whole circumstances of the case, two general questions occurred; 1mo, How far, where a lease is granted to assignees, the original tenant, after assignation, continues liable to the landlord for the rent, and, consequently, has any title to insist in a removing against the assignees? And,
2do, Whether payment of arrears, before decree, does not render further procedure on the act of sederunt incompetent?
The Court considered the first question to be attended with difficulty, and one upon which there was no precedent; the opinions of Lord Bankton, B. 2. T. 9. § 14.; and Mr Erskine, B. 2. T. 6. § 34. (it was observed) who think the cedent still liable, being founded entirely on an observation incidentally made by the Court, in the case Grant against Lord Braco, reported by Kilkertan, 24th February 1743, voce Tack, which was decided on other grounds.
The Court, however, had no occasion in this case to determine the point.
On the second question, the pursuer contended, That the act of sederunt gives the heritor, “or other setter of the tack,” upon the tenant's becoming a year's rent in arrear, a right to insist that he shall find security for arrears, and five subsequent crops, in general terms, without making any exception in his favour, on his afterwards paying the arrears; and that the contrary doctrine would destroy the effect of the act of sederunt, as a bankrupt tenant might contrive to make a partial payment, although he could not find security for his future punctuality, which was the chief object of the act of sederunt.
The defender answered, That the penal consequences of the act of sederunt could not be meant to apply irrevocably, wherever the term of payment was a few days perhaps elapsed; and that therefore the caution found in the sequestration, and still more the payments made by the cautioner, prevented their operation in this case.
The Lord Ordinary found, that the act of sederunt applied, in respect “that at the commencement of the process a full year's rent was resting unpaid by the defender.”
Upon advising a reclaiming petition, with answers, the Court were of opinion, that to found a removing, under the act of sederunt, the year's rent must be due likewise when the decree is pronounced, Campbell against Robertson, No 108. p. 13867.; but it was at the same time observed, that the landlord is not obliged to accept of partial payments.
The Lords (11th March 1796), assoilzied the defender; and to this judgment, upon considering a second petition, with answers, they almost unanimously “adhered.”
Lord Ordinary, Eskgruve.Act. John Clerk, Ar. Campbell, jun.Alt. Baird.Clerk, Gordon,
Fac. Col. No 229. p. 532.
