Scottish Court of Session Decisions

Andrew Jack let to William Johnston a house belonging to him in Portobello for the year from Whitsunday 1878 to Whitsunday 1879, at a rent of £45. Johnston having fallen in arrear with his rent (which was payable in monthly instalments), Jack, as landlord, on 20th January 1879, sequestrated the furniture and effects in the house on a summons under the “Debts Recovery (Scotland) Act 1867.” On 13th February, R. B. M'Caig, a creditor of Johnston for £31, 9s. 6d., poinded the furniture in security of his debt, and after obtaining a warrant and advertising a sale, proceeded on 10th April to carry it out. The landlord having become aware of the proceedings, appeared at the commencement of the sale, informed the auctioneer of his previously existing sequestration, and desired him to desist from the sale. The auctioneer, however, refused, and the goods were duly sold, the majority of the articles not having realised their appraised values, and being knocked down to M'Caig as poinding creditor at that value, to the extent in all of £16, 10s. The goods so knocked down to M'Caig were removed from the house and sold for his behoof about a fortnight after. The free proceeds of the sale, which amounted after deduction of the incidental expenses and of the rates and taxes, to only 7s. 2d., were subsequently paid over to the defender's agent.

Jack raised this action against M'Caig for payment of £28, 15s., being the balance of Johnston's rent, on the ground that he had incurred liability therefor by disregarding the pursuer's protest, and committing a breach of the landlord's sequestration. It was averred that he was well aware that he was defeating the pursuer's right of hypothec. The defender averred his own bona fides throughout the transaction, and his ignorance until the pursuer's interference on the day of the sale of the previously subsisting sequestration.

The defender pleaded inter alia—“(3) On the hypothesis that the rent libelled was truly due, and that the alleged sequestration took place, and the alleged rights of hypothec existed, the defender is entitled to absolvitor. (4) In any event, the defender is only liable to the extent of the value of the effects poinded by him.”

The Lord Ordinary ( Craighill) on 28th Nov. 1879 pronounced this interlocutor:—“… In the first place, Finds, as matter of fact, (1) That on 20th January last there was sequestrated at the instance of the pursuer … the furniture in the house in Bath Street, Portobello, tenanted and occupied by William Johnston, under the pursuer, for payment of the sum of £19, 5s., alleged to be an unpaid balance of rent due and payable by Johnston to the pursuer at and prior to 25th December 1878; (2) That on 13th February last there was poinded at the instance of the defender … the same furniture … for payment of a debt alleged to be due by Johnston to the defender; and this furniture on 10th April last was … sold at the instance of the defender; (3) That the defender, both at the date of the said poinding and at the date of the said sale following thereupon, was in ignorance of the sequestration used by the pursuer as aforesaid, and also of the fact that rent had become due and payable by Johnston which remained unpaid; (4) That the net proceeds of the said sale were less than the balance of rent for payment of which sequestration was used as aforesaid, and were also less than the rent which remained and became due and payable by Johnston to the pursuer at Whitsunday last—this last being the amount for which decree is concluded for in the summons; (5) That the said sale was advertised in terms of said warrant of sale, and the time at which it was to take place was known to the pursuer two days before the sale occurred, but nevertheless the pursuer neither applied for an interdict nor made any communication to the defender or to the agent of the defender for the purpose of preventing the sale; (6) That four days after the sale … the pursuer, through his agent, made a claim upon the defender for the whole rent due by Johnston for the year from Whitsunday 1878 to Whitsunday 1879 so far as unpaid; and liability for such a claim having been repudiated, the present action was raised; and (7) That the claim thus intimated, which is the claim sued for, was the claim primarily insisted on at the debate upon the proof; and the only alternative which was submitted for judgment on behalf of the pursuer was, that decree should at least be pronounced against the defender for payment of the £19, 5s., for payment of which Johnston's furniture had, as aforesaid, been sequestrated: In the second place, Finds, as matter of law … that the pursuer is not entitled to recover from the defender either the whole rent of the year from Whitsunday 1878 to Whitsunday 1879 so far as unpaid, or the portions of that rent for the payment of which, as aforesaid, the furniture of Johnston, the tenant and occupant, was

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sequestrated: Therefore sustains the defences, &c….

“ Note.—The principle which was recognised and acted on in Bell v. Gunn, 21st June 1859, 21 D. 1008, and which has also been recognised and acted on in cases which have come before the Court since that decision, appears to the Lord Ordinary to afford the rule of decision on the present occasion, upon the assumption that he has correctly estimated the facts as established by the proof. Several other defences than the one which has been sustained, it may be added, were brought under the consideration of the Lord Ordinary in the course of the discussion upon the proof, but as he considers that the plea upon which judgment has been given is sufficient for the determination of the controversy between the parties, none of these have been made matter of judgment.”

The pursuer reclaimed.

The defender having on the strength of the Lord Ordinary's interlocutor used inhibition against the pursuer on the ground that he was vergens ad inopiam, the latter presented a petition for recal of the diligence, which with answers for the defender was put out for hearing at the same time as the reclaiming-note.

Argued for the reclaimer—The defender had committed a breach of the sequestration, and had acted in bad faith, not having made due inquiry, as he was bound to do before executing a poinding. By his interference he had made himself liable to the pursuer for the whole balance of rent due, on the principle that an intromitter may be held liable in more than the amount by which he has profited.

Replied for the respondent—He had acted in good faith throughout. The action was barred by the pursuer's bad faith and acquiescence. Pursuer had sustained no damage through the interference. In any case, defender could not be liable for more than the amount he had so gained.

Authorities— Bell v. Gunn, June 21, 1859, 21 D. 1008; Selkrig, 1708, M. 6224; Jackson, 1745, M. 6245; Love v. Forster, Jan. 19, 1833, 11 S. 280; M'Ghie v. Mather, Dec. 1, 1824, 3 S. 337; Stewart v. Peddie, Nov. 14, 1874, 2 R. 94; 2 Hunter (Landlord and Tenant), 396.

In answer to a question from the Bench, counsel for pursuer stated that he would be content with decree for £16, 17s. 2d., being £16, 10s., the value of the goods knocked down to the poinding creditor at the sale, together with 7s. 2d., the balance of the proceeds of the sale paid to defender's agent, in place of the whole unpaid balance of Johnston's rent, viz., £28, 15s., sued for in the summons.

At advising—