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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wright v. Wightman [1875] ScotLR 13_29 (30 October 1875)
URL: http://www.bailii.org/scot/cases/ScotCS/1875/13SLR0029.html
Cite as: [1875] SLR 13_29, [1875] ScotLR 13_29
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
Sheriff of Edinburgh.
v.
Facts:
The Sheriff in a petition at the instance of a landlord ordained a tenant during the currency of a lease of an urban subject to stock and plenish her premises with furniture sufficient in value to afford security for the current rent, otherwise to find caution for payment, and upon failure to implement this order he granted a further warrant summarily to eject her— Held that as these proceedings were for the purpose of enforcing, and not of rescinding the lease, they were competent.
This was an appeal in a petition presented in the Sheriff-court of Edinburgh by Mr Charles William Wright against his tenant Mrs Helen Wightman. It appeared that the petitioner had, at the term of Whitsunday 1874 let to the respondent his house in No. 16 Greenside Place, Edinburgh, upon a lease of three years, and at an annual rent of £30. There was in addition payable yearly, along with the rent, a further sum of £2 for the use of certain fixtures and fittings. That at Whitsunday 1875 there was due to the petitioner by the respondent for rent and use of fixtures a sum amounting with interest to £23, 5s. 8d. The petitioner at that time obtained a warrant of sequestration, under which he sold the whole of the respondent's furniture. The proceeds of this sale reduced the debt due to him to £17, 3s. 3d. The petition further stated “that the respondent is still in possession of the said house, and at the present time there is not sufficient household effects and plenishing to pay the current rent, amounting to £32, exclusive of the balance of £17, 3s. 6d. still due to the petitioner.”
The petitioner accordingly craved the Sheriff “to ordain the said respondent to plenish the said dwelling-house with furniture and other effects, so as to afford security sufficient in value equal to the sum of £32 sterling, and of the foresaid balance of £17, 3s. 3d., at the sight and to the satisfaction of a licenced appraiser to be named by your Lordship; and failing her doing so, or finding caution for said rent acted in your Lordship's Court, to grant warrant summarily to eject the respondent, her servants and dependants, goods, gear, furniture, and other effects, furth and from said dwelling-house and pertinents, and convey any furniture or other effects belonging to the respondent to a place of safe custody, there to remain subject to the petitioner's
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claims for rents, when an application for the sale thereof can be applied for, and further to grant warrant to the petitioner to let the said dwelling-house and pertinents at such rent as he can procure therefor, to be applied pro tanto of any balance of any rent that may remain over unpaid after a sale of said effects; to grant warrant to open shut and lockfast places, so far as may be necessary for carrying into effect the warrants herein craved, and to find the respondent liable in the expenses for this application, and of all proceedings to follow thereon.” The respondent, in her minute of defence, stated that she was in the course of furnishing her house, and that there would be in a short time sufficient household effects and plenishing to pay the current rent, and she denied liability for the balance of £17, 3s. 3d.
On July 6,1875, the Sheriff-Substitute ( Gebbie) issued the following interlocutor:—“The Sheriff-Substitute having considered the closed record, ordains the respondent, within ten days from this date, to stock and plenish the premises in question with furniture and effects sufficient to afford security for the current year's rent thereof, amounting to £32 sterling, and for the balance of rent due at Whitsunday last, as set forth in the petition, and to produce a certificate under the hand of any licensed appraiser to that effect; or within said period to find good and sufficient caution acted in the Sheriff Court Books for payment of said current year's rent, and also for said balance due at Whitsunday last, and to produce a certificate, under the hand of the Clerk of Court, to that effect, with certification that if she fail to stock and plenish, or find caution as aforesaid, warrant to eject will be granted, all as craved; meantime reserves further consideration of the cause.”
The respondent appealed, but the Sheriff ( Davidson), on 24th July 1875, adhered. Upon 31st August a warrant to summarily eject the respondent was granted by the Sheriff-Substitute ( Hamilton).
The respondent appealed to the Court of Session.
Argued for her—If this was virtually an action of removing the proceedings were incompetent, not being in accordance with the Act of Sederunt of 1756. But if not equivalent to an action of removing, the Sheriff had no right to eject the tenant while the lease was still subsisting. The Sheriff was not entitled to ordain the tenant to put into the house sufficient furniture to give security for the arrear of rent. The landlord could only recover this balance of £17, 3s. 3d., as an ordinary debt.
The respondent's (petitioner's) counsel admitted that the security sought must be restricted to the sum of £32, the amount of the rent for current year.
Authorities— Horn v. M'Lean, Jan. 19, 1830, 8 Shaw 329; Hall v. Grant, May 19, 1831, 9 Shaw 612; M'Dougall v. Buchanan, Dec. 11, 1867, 6 Macph. 120; M'Glashan's Sheriff Court Practice, n. e. 41; Adam v. M'Dougall or Fergusson, June 14, 1828, 6 Shaw 978.
At advising—
There is nothing in the prayer of the petition which applies to the question whether the lease is at an end or not. The prayer is for warrant to the petitioner to let the subjects in aid of bygone rent. I am inclined to think that the landlord would have been obliged to receive back the appellant within the currency of the lease upon his claim being satisfied. There must, however, be some alteration in the Sheriff's interlocutor, as it is admitted that the petitioner can only recover the arrear of rent and the £2 for the use of fixtures as an ordinary debt in the ordinary way. The result is, that the respondent should be ordained to plenish the house with furniture up to the value of £30, the amount of actual rent, or to find caution in terms of the prayer of the petition, and failing her so doing that, warrant of ejectment should be granted.
But then it was forcibly and ingeniously argued that what was sought from the Sheriff was practically a reversion of the lease, which was not competent in the Sheriff-court. It would be much to be regretted if that principle was given effect to so as to exclude actions of this sort in the Sheriff-court. I do not think it can be maintained, for this reason, the landlord does not desire to rescind, but rather to enforce, the lease; and it is the tenant who, by her action, cuts it down by refusing to plenish or find caution. Now it appears to me that this proceeding was perfectly competent in the Sheriff-court. There is one circumstance which satisfies me that it was so, and that is, that the objection now taken was never raised there.
The following interlocutor was pronounced:—
“Sustain the appeal; find that the petition in this case is competent before the Sheriff; recall the judgments complained of in so far as the appellant is thereby ordained to plenish the premises in question to the extent, or to find caution for the sum of £17, 3s. 3d., and the sum of £2, for which reserve the petitioner's claim and the appellants answer thereto, and remit to the Sheriff to proceed in conformity with these findings; find no expenses due to or by either party in this Court, and decern.”
Counsel for Appellant— Rhind. Agent— D.Murray, L.A.
Counsel for Respondent— M'Kechnie. Agents— T. & W. A. M'Laren, W.S.