Scottish Court of Session Decisions

Lockhart Dobbie, proprietor of the Hallcraig Mills, Airdrie, brought a process of sequestration for rent in the Sheriff Court at Airdrie against William Summerville, the tenant of these mills. Summerville's estates had been sequestrated under the Bankruptcy Statutes, but his trustees did not take up the lease nor in any way interfere with the working of the mills. The petition, as restricted by minute of 12th November 1879, concluded for sequestration for the rent due at Lammas 1879, being a sum of £53 with interest thereon, and the prayer of the petition was granted by the Sheriff-Substitute, and on appeal by the Sheriff, who on 14th November sequestrated and granted warrant to sell as much of the sequestrated effects as would pay the sum of £53. The nett proceeds of the sale amounted to £38, 17s. 7d. The taxed expenses of process amounted to £21, 11s. 6d. There was thus available to meet the £53 for which Dobbie had sequestrated a sum of £17, 6s. 1d. The pursuer craved authority to apply the nett proceeds of the sale in payment of the taxed expenses of process, and the balance of £17, 6s. 1d., in payment pro tanto of the £53, leaving due to him a sum of £36, 12s. 11d. The Sheriff-Substitute on 11th December 1879 pronounced this interlocutor:—“Approves of the report of sale and relative account of expenses of process and sale as taxed, in all, at £26, 17s. 6d. sterling: Allows the pursuer to apply the nett proceeds of sale, viz., £38, 17s. 7d., in extinction of the taxed expenses of process, amounting to £21, 11s. 6d.; and in respect certain claims have been lodged by creditors of the defender which require to be disposed of, appoints the balance of £17, 6s. 1d. to be consigned in the hands of the Clerk of Court subject to future orders; and appoints the case to be put to the roll on Friday first for hearing on the claims.”

The claims mentioned in this interlocutor were lodged at the instance of John Thomson, David Black, and Robert Wood, workmen in the employment of the defender Summerville. They claimed £4, 8s. 9d., £4, and £4, being four weeks' wages due to them respectively. The pursuer having consigned the sum of £17, 6s. 1d. as divided, claimed the whole fund in part payment of the £53 due to him as quarter's rent. The competition was thus between the landlord for his rent and the workmen in the employment of the tenant, who founded on sec. 122 of the Bankruptcy Act of 1856, which provides that the wages of workmen, where such wages do not exceed £60 per annum, are to be entitled to the same privilege as the wages of domestic servants to the extent of a month's wages prior to the date of sequestration, and also founded on the Amending Act of 1875 (38 and 39 Vict. cap. 26), which extends the period, in the case of workmen whose wages do not exceed £50, to a period of two months before the date of sequestration.

The Sheriff-Substitute on 2d January 1880 issued an interlocutor dismissing these claims, on the ground that the statutes did not give servants any preference in a question with the landlord exercising his right of hypothec.

On appeal the Sheriff ( Clark) recalled this interlocutor, found that domestic servants are preferable to the landlord's hypothec, and therefore ranked and preferred the claimants' and others in terms of their claim, and appointed the balance to be paid over to the petitioner Dobbie.

Dobbie appealed.

When the case was heard in the Second Division the Court drew attention to the fact that by the interlocutor of the Sheriff on 5th November 1879 the cause was exhausted save to the extent of £17, or rather of the £12, 8s. 9d. in dispute between the claimants. In these circumstances the Court invited argument on the question of the competency of the appeal under the Sheriff Court Act of 1853, sec. 22, which provides that it shall not be competent to appeal any cause not exceeding the value of £25.

The appellant cited the cases of Wilson v. Wallace, March 6, 1858, 20 D. 764; Buie v. Steven, December 5, 1863, 2 Macph. 208—to show that where a cause is originally of the value of £25 and upwards, the jurisdiction of the Court is not excluded by the circumstance that afterwards, but before the lodging of the appeal, the

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amount in dispute had come to be less than £25. In Wilson's case this Court sustained its jurisdiction, though the sum in dispute was really only £6. The principle is that when the litigation in its inception is far more than £25, the case may be appealed.

The respondents argued that the competition between the landlord and themselves was really a new litigation unconnected with the original conclusions of the petition.

Authorities— Stevens, Son, & Company v. Grant, October 17, 1877, 5 R. 19; Aberdeen v. Wilson, July 16, 1872, 10 Macph. 971.

At advising—