Scottish Court of Session Decisions

This was the sequel to the cases reported ante, Jan. 26, 1877, vol. xiv. p. 253; June 8, 1877, vol. xiv. p. 545; and 4 R. 328 and 854, in which the Court decerned against the defender Andrew Buchanan in terms of the conclusions of removing, and of consent of both parties fixed the terms of removing at Martinmas 1877 for the arable land, and Whitsunday 1878 for the houses and grass, reserving to the defender all claims which might be competent to him in connection with his possession of the farm of Flemington. Thereupon the defender, having been charged to remove from the lands and farm, presented a petition of appeal to the House of Lords against the interlocutors pronounced by the Court.

The Duke of Hamilton having thereafter raised an action for payment of the half-year's rent due for the farm at Whitsunday 1877, Mr Buchanan lodged defences, in which, inter alia, he pleaded that the action should be sisted till the issue of the appeal in the House of Lords, and that, in the event of the judgment of the Court in the declarator case being affirmed, the rent of the farm should be reduced. The Lord Ordinary ( Rutherfurd Clark), before whom the action depended, intimated that he would not pronounce decree of payment while the terms of the lease were still subject to interpretation in the House of Lords, but that Mr Buchanan ought either to consign the rent in manibus curiæ, or find caution for payment of the amount that should ultimately be found due by him. Mr Buchanan refused to make any provision for satisfying either of these requirements. The Duke of Hamilton accordingly applied to the Court under the Act 48 Geo. III. cap. 151, sec. 17, to allow execution to proceed upon the decree of removing, or to ordain Mr Buchanan to consign a year's rent (another half-year's rent having by this time fallen due) as a condition of his being allowed to remain in possession.

The Court had doubt whether it was competent to order consignation under such a petition; and the respondent intimated that he was willing to obey any order that should be pronounced, but would not consign unless ordered to do so.

Ultimately, on the authority of the cases of Earl of Mansfield v. Henderson, 2d March 1815, F.C., and Earl of Queensberry v. Robert Wilkin, there referred to, the Court ordered the respondent to consign the amount of rent that was overdue.

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* Decided 29th January 1878.