Scottish Court of Session Decisions

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Cite as: [1866] SLR 2_8, [1866] ScotLR 2_8

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Thursday, May 17. 1866

2 SLR 8

M'Cubbing

v.

Spalding.

Subject_1Reparation
Subject_2Wrongous Sequestration
Subject_3Relevancy —
Facts:

Averments in an action of damages for wrongous sequestration which held irrelevant.

Headnote:

This is an action of damages for wrongful sequestration by a landlord. The defender pleaded that the action was irrelevant.

The pursuer was tenant of certain lands under the defender, on a lease for a term of years. On 3d December 1862 an agreement was concluded, by which the pursuer gave up the farm as at Whitsunday 1863, in regard to the houses and grass; and at the separation of the crop of the year, as to the arable lands. The defender agreed to take the white crop of that year off the tenant's hands at a valuation to be fixed by arbiters mutually chosen. On 10th August 1863 the landlord presented a petition for sequestration of the growimg crop to the sheriff of the county. There was then due by the pursuer a balance of the half-year's rent payable at Martinmas 1862, amounting to &26, 1s. 6d., and the whole half-year's rent, amounting to £77, 16s., payable at Whitsunday 1863. In other words, there was an amount of rent in arrear, of which part was nine months and part was three months past due. Under this application a sale was made of the growing crop, by warrant of the sheriff. The pursuer now complains that this sequestration and sale were wrongful proceedings, seeing that the landlord had full security in the agreement to make over the growing crop at a valuation. He says that the sale under sequestration was made at inadequate prices. But he admits that no pecuniary damage rose to him in consequence, for a valuation of the crop took place by arbiters mutually named. The pursuer got credit for the amount of the valuation in settling with the landlord, and received payment of the balance due'to him after paying his rent. His present action of damages is accordingly limited to reparation of the alleged damage to credit and feelings by the proceedings of the defender in the sequestration of August 1863.

The pursuer proposed the following issue:—

“It being admitted that the defender applied for and obtained the warrant of sequestration dated 10th August 1863, annexed to the petition, No. 10 of process, and that the said warrant was executed:

It being also admitted that the defender applied for, and obtained the relative warrant of sale, dated on or about 21st August 1863, and in virtue thereof sold by public roup the growing crop belonging to the defender on the said farm of Cubbox:

Whether the said warrants were wrongously applied for and executed, to the injury and damage of the pursuer?”

Damages laid at £300.

Judgment:

The Lord Ordinary (Kinloch), in reporting the issue, observed that he thought the action was irrelevant, on the pursuer's own statement. The pursuer showed no ground in law on which the landlord was to be held not entitled to exact payment of the rent when it fell due, or barred from using the appropriate diligence for its recovery when unpaid, merely on account of the bargain about taking the tenant's white crop at the issue of the lease. There might have been very good reasons why the landlord did not trust to this security, or delay exacting his rent. For anything that appears, the landlord was entitled to use all ordinary personal diligence for recovery of the past due rents, and there seems no reason why he should not equally use sequestration. The pursuer did not maintain that the sequestration was used for rent not covered by the hypothec. It was admitted that no actual loss was sustained by the tenant. The Lord Ordinary could see no legal ground for sustaining a claim at his instance for injury to credit and feelings.

After hearing counsel for the pursuer, who referred to Mackay v. Grant, June 14, 1865, 3 Macq. 994, the Court to-day, adopting the reasoning of the Lord Ordinary, unanimously dismissed the action, with expenses.

The Lord President—I think, on the whole, there is no tangible ground of damage here. As to real injury, it has been held that the landlord is

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liable for the amount of the valuation, and that has been paid. I see no good basis in law for the claim of damage for injury to feelings.

Lord Curriehill—The landlord's hypothec undoubtedly attached to this crop; and if there had been no agreement, it is clear he was entitled to do all he did. The question is, did the agreement prohibit him from making his hypothec effectual? Some proceeding was necessary for the purpose. I don't see anything in the agreement which prohibits him. I think the landlord has done nothing which he was not legally entitled to do. Any damage which has been caused has resulted to him, and not to the pursuer.

Lord Deas—I am of the same opinion. The question is whether the landlord did anything illegal, and that depends upon the terms of the agreement. It was entered into in December 1862. Is there anything in it to prevent the landlord sequestrating if he sees that necessary? The tenant's ordinary creditors might have carried off the crop if it had not been secured by sequestration. I see nothing in the agreement by which the landlord abandoned his legal rights. We are not in the habit of sending parties out of Court in cases of this sort very readily; but on the pursuer's own showing he has no case against the defender.

Lord Ardmillan concurred.

Counsel:

Counsel for Pursuer— Mr Millar and Mr J. G. Smith. Agent— Mr W. S. Stuart, S.S.C.

Counsel for Defender— Mr Gordon and Mr J. H. A. Macdonald. Agent— Mr John A. Macrae, W.S.
1866