Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Midlothian in a petition for sequestration by a landlord under his right of hypothec. By written lease dated in 1878 the defender became tenant for a period of seven years of the Beehive Inn, Grass-market, Edinburgh, at a rent of £200 for the first four years, and £220 for the remaining three years of the lease. By subsequent verbal agreement there were let to the defender two additional rooms and a cellar in Clydesdale Close, upon payment of additional rent of £10 and £6 per annum respectively. Up till Martinmas 1880 the defender paid the stipulated rent.

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At Whitsunday 1881 the defender, it was alleged, owed the pursuers £108, being the half-year's rent payable at that date, and the landlord then, under his right of hypothec, petitioned the Sheriff to sequestrate the furniture and other effects in the Beehive Inn, and in the premises connected with the inn, and the defender was alleged to be hopelessly insolvent and notour bankrupt.

The defender in a statement of facts declared that he never got possession of the cellar accommodation. He stated that operations were commenced for fitting up the cellar, when the proprietors were interdicted from proceeding with the work, and that in consequence he was compelled to use part of his stabling for cellar purposes. Considerable loss was, he alleged, occasioned thereby, and for that right of action was reserved. Among the defender's pleas-in-law were the following—“(2) The defender never having got full possession of the premises, he is not liable in the rent thereof. (4) In any view, the defender having claims arising out of his tenancy of the premises far exceeding any rent due, the present proceedings were nimious and oppressive, and ought to be stayed.”

On the motion of the pursuer the Sheriff-Substitute ordained the defender to find caution for the expenses of the process. In a note the Sheriff said—“The present case does not seem to fall within the category of those in which the Court has relieved an insolvent and notour bankrupt from the necessity of finding caution for expenses as a condition of defending an action of a personal character brought against him. The present is an ordinary sequestration followed out by a landlord against a tenant in arrear. Of the latter's insolvency and notour bankruptcy there seems to be sufficient proof.”

On appeal to the Sheriff-Depute the judgment of the Sheriff-Substitute was affirmed.

The defender then appealed to the Second Division of the Court of Session. He argued that caution is required of a bankrupt defender only in very exceptional circumstances, as when the defence stated is a frivolous one.

The Lords, without deciding whether caution should have been required or not, heard the defender's counsel on the merits, but did not call for any reply.

At advising—