Scottish Court of Session Decisions

This was an appeal from the Steward-court of Kirkcudbright in an action of damages for wrongous sequestration for rent.

The summons concluded that the defender ought “to be decerned to pay to the pursuer the sum of £50 sterling in name of damages and solatium for the gross wrong, and manifest and unjustifiable injuries which the pursuer has sustained in his reputation, character, and feelings, in consequence of the defender, who is proprietor of a house and garden situated in Port Street of Dalbeattie aforesaid, which he let to the pursuer, for the year from Whitsunday 1869 to Whitsunday 1870, at the rent of £6, 10s. for the year, and which the pursuer obtained possession of on 26th May 1869, and has since occupied as tenant thereof accordingly, having most nimiously and oppressively, illegally and unwarrantably, and groundlessly and injuriously, as well as wrongfully and maliciously, and without probable cause, raised a small-debt summons of sequestration on the 17th of November 1869, before my Circuit Small-Debt Court at Castle Douglas, at his own instance against the pursuer, on the allegations that he was due to the defender the sum of £3, 5s. as the rent of said house and garden from Whitsunday 1869 to Martinmas in that year, and that the pursuer refused or delayed to pay said rent, which allegations were false, as no part of said rent was due or exigible either by law or according to the universal custom of the district, and in the said stewartry, and the understanding of parties, till 22d November 1869 for the half-year preceding—not expired till that date from said date of entry—and the pursuer had never been asked for and had never refused to pay said rent.”

The defence was that the action was irrelevant and incompetent, and contained no statement to warrant the conclusions. The pursuer's statements were denied, and counter statements made.

The Steward-Substitute ( Johnston) found the summons relevant and competent, and allowed a proof of the respective averments of parties on these among other grounds, that if the pursuer in this case can show (1) that in the custom of the country the date of payment is fourteen days after the legal term day; and (2) that in the understanding of parties the rent was to be paid according to the custom of the country; he will establish the fact that the sequestration was taken out too soon, and was therefore illegal.

The case was appealed to the Sheriff ( Hector), who sustained the appeal, and recalled the above interlocutor of the Steward-Substitute. The following are the terms of his interlocutor:—“Finds that, according to the statement in this summons of damages, there was let to the pursuer by the defender a house and garden, situated in Port Street, Dalbeattie, for the year ensuing Whitsunday 1869, at the yearly rent of £6, 10s., and the pursuer occupied the premises in pursuance of said lease; Finds that, according to law, the first half of the said rent, being £3, 5s., became due on 11th November 1869, being Martinmas term-day; and the pursuer has not made averments specific or relevant, and sufficient to the effect of importing or implying an agreement or understanding by the defender that said half-year's rent was not to be payable until 22d November, as now pretended by the pursuer; Finds it not alleged by the pursuer that he made or tendered payment of the said rent before 17th November 1869, when the Small-Debt Court summons, containing warrant to inventory and sequestrate, was raised against him; Finds that the said action and warrant were competent and lawful at the instance of the defender, and in conformity with the provisions of the Small-Debt Act, 1 Vict., cap. 41, § 5, and relative schedule B thereto subjoined; Finds that the pursuer has averred that the defender caused the said warrant to inventory and sequestrate to be executed on 18th November, but finds that, although it was competent for the pursuer to have appeared in the small-debt action to which he was cited, and to have shown cause against the defender's claims therein, he has not averred in this summons of damages that he did so, or obtained any judgment therein to the effect that the foresaid rent had not become payable at or before the date of said action or warrant; Finds that summons of damages was raised on 6th April last (1870), and that the pursuer has not recorded averments relevant or sufficient to support the same, or to be admitted to probation.”

The pursuer appealed to the First Division of the Court of Session.

Mair for him.

Chas. Scott for the respondent.

At advising—