Scottish Court of Session Decisions

By the third section of the Removal Terms (Scotland) Act 1881 (44 and 45 Vict. cap. 39) it is enacted—“Where under any lease entered into after the passing of this Act, the term for the tenant's entry to or removal from houses within the limits of any burgh shall be one or other of the terms of Whitsunday and Martinmas (whether old or new style), the term for such entry or removal shall, in the absence of express stipulation to the contrary, be held to be at noon of one or other of the following days, to wit the twenty-eighth day of May if the term be Whitsunday, and the twenty-eighth day of November if the term be Martinmas: Provided always when any of these days shall fall upon a Sunday or legal holiday, the term of entry or removal shall be at noon of the first lawful day thereafter.”

On 29th June 1882, William Thomson, proprietor of the house 25 Thornville Terrace, Leith, presented this petition in the Sheriff Court of the Lothians, against James Barclay, his tenant in that house, for sequestration, in security of the rent to come due at Martinmas 1882 and Whitsunday 1883, of such furniture and effects as were still in the house, and warrant to carry back such effects as the defender had removed, as also for warrant, if necessary, to sell as much of the sequestrated effects as would make up the half-year's rent of £6, 10s.

The defender denied on record that he was tenant of the house for the period to which the action referred, but it was admitted, both in the Sheriff Court and on appeal, that having been tenant for several previous years he had verbally agreed to continue tenant from Whitsunday 1882 to Whitsunday 1883. It was admitted that on 24th May 1882 the defender had removed some of his furniture and effects to another house.

The pursuer averred that the whole furniture and effects which were or had been in said house subsequent to 15th May 1882 were subject to his right of hypothec for the rent of said dwelling-house for the year commencing that date and ending at Whitsunday 1883, and were removed from the said dwelling-house for the purpose of defeating, or at all events to the prejudice of, the pursuer's said right of hypothec.

He pleaded—“(1) The defender having become tenant of the dwelling-house No. 25 Thornville Terrace for the year from Whitsunday (15th May) 1882 to Whitsunday (15th May) 1883, at the rent above-mentioned, the pursuer, his landlord, has a right of hypothec over the whole furniture and other effects which are or have been in said dwelling-house from said first mentioned date.”

The defender pleaded that the “furniture in question having been removed from the pursuer's house before 28th May 1882, it was not in any way subject to the pursuer's right of hypothec.”

The Sheriff-Substitute ( Rutherfurd) on 29th June 1882 granted warrant for interim sequestration, and on 21st July 1882 he repelled the defences.

“ Note.—It was conceded at the bar on behalf of both parties that by verbal agreement between them the defender was to continue tenant of the pursuer's house, No. 25 Thornville Terrace, Leith, ‘from Whitsunday 1882 to Whitsunday 1883.’ In security of the rent due currente termino, the pursuer seeks to sequestrate furniture belonging to the defender, which was removed from the premises on 24th May. The defender maintains that as his right of occupancy under the lease did not commence until 28th May, in terms of the third section of the Removal Terms (Scotland) Act 1881 (44 and 45 Vict. cap. 39), the furniture in question was not subject to the pursuer's right of hypothec. The defender's argument would of course have been the same even if the Act referred to had not passed, for the statute merely substituted the 28th for the 25th of May, which was formerly the Whitsunday term for entry or removal to or from houses within burgh, and, as already mentioned, the furniture was removed on the 24th. But it appears to the Sheriff-Substitute that a conventional term of entry does not affect the question, which depends upon the date from which the rent begins to run. In the case of grass parks that has been held to be from the legal term of May, irrespective of the conventional term of entry ( Campbell v. Campbell, July 18, 1849, 11 D. 1426), and the same rule applies to houses, Binny v. Binny, January 28, 1820, F.C.; King v. Jeffrey, January 24, 1828, 6 S. 422.

“In the case of M'Intyre v. M'Nab's Trustees, July 8,1831, 5 W. & S. 299, it was contended for the appellant that sequestration used by the respondent was illegal, seeing that the rent was not payable till the 26th of May. The respondent, on the other hand, maintained (p. 302) that ‘although the rent was not payable till the 26th, it was due on the 15th of May, and that at all events, as the tenant had begun to remove his effects, they were entitled to have them sequestrated in security of the rent for the current year.’

In giving judgment, the Chancellor, Lord Lyndhurst, said:—‘I have stated that the sequestration issued was not merely for the purpose of securing that rent ( i.e., of the previous year), but the sequestration was also for another purpose—that of securing the rent for the current year. Now, it is stated at the bar that the current year had not commenced. I am of opinion that by the law of Scotland the current year commenced upon the 15th of May, and that it was not postponed till the 26th. Whitsunday is fixed by a positive Act of Parliament, an Act of the Scottish Parliament (for the purpose of getting rid of the inconvenience of moveable feasts), at a precise day, viz., the 15th of May. I am of opinion, therefore, that the rent of the previous year was payable on the 15th of May, and that the new year commenced at that period.’”

On 21st November 1882 the Sheriff-Substitute granted warrant to sell by public roup as much of the sequestrated effects as would pay to the petitioner the half-year's rent due to Martinmas last.

The Sheriff dismissed an appeal taken by the defender.

“ Note….—The defender now admits he was tenant from Whitsunday 1882 to Whitsunday 1883, which is a complete abandonment of his original defence, and is conclusive in favour of the pursuer.”

The defender appealed to the Court of Session.

The respondent took objection to the competency of the appeal, in respect that the value of the cause was under £25. He relied on the case of The Singer Manufacturing Co., May 14, 1881, 8 R. 695. On the merits he cited the case of

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M'Intyre v. M'Nab's Trustees, July 8, 1831 (cited by the Sheriff-Substitute), and argued that the rent became due on the legal term, the 15th May, and was not postponed till the 28th. It followed, then, that the sequestration was good to attach the furniture here for rent payable at that term.

The appellant replied that though the rent for the year was only £13, the pursuer might under the sequestration seize goods which might exceed the sum of £25. The mere rent was not the test — Shotts Iron Co. v. Kerr, December 6, 1871, 10 Macph. 195; Aberdeen v. Wilson, July 16, 1862, 10 Macph. 971; Cunningham v. Black, January 9, 1883, 20 Scot. Law Rep. 295. (2) On the merits—Admitting that there was a duly concluded renewal of the lease for the year 1882–1883, his term of entry, under the 3d section of the Renewal Terms (Scotland) Act 1881, must be held to have been on the 28th of May. The furniture was removed from the dwelling-house on 24th May, and was not therefore on the premises during the period for which it had been sequestrated in security of the rent.

At advising—