Scottish Court of Session Decisions

Henry Nelmes & Company, billiard and bagatelle table manufacturers, Wellington Street, Glasgow, on 30th July 1876 agreed to let on hire to John

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Neilson, billiard-room keeper, Dunoon, a billiard-table and appurtenances at the rate of 8s. per week. On 15th September 1878 another agreement was made with regard to a second billiard-table and appurtenances. These articles remained on hire with Neilson until 11th October 1882, when they were removed by Nelmes & Company to other premises in Dunoon. Thereupon Mrs Jane Ewing, proprietrix of the premises, without any communication with Nelmes & Company, on the narrative that she was heritable proprietrix of the premises, and that they had been let by her to Neilson for the year ending Whitsunday 1883, at a yearly rental of £33, and that there would fall due at Martinmas 1882 the sum of £16, 10s., and the same sum at Whitsunday 1883, being the half-year's rents of said premises due at these terms respectively, presented a petition to the Sheriff to sequestrate, and for warrant to inventory and secure, the whole stock-in-trade, furniture, and effects which were or had been on the premises. She also craved warrant to officers of Court to search for, take possession of, and carry back to the said premises the stock-in-trade, furniture, and other effects removed therefrom by Neilson, and there to inventory and secure the same, “and particularly, a billiard-table and pertinents removed to a shop in Moir Street, Dunoon, and also another billiard-table and pertinents removed to the Argyll Hotel, Dunoon,” and that in security and for payment to her of the rents above mentioned. A warrant was granted on 24th October 1882, and the table which had been removed to Moir Street was taken back to Argyll Street, but the officer was prevented from taking back the one which had been removed to the Argyll Hotel.

This was a petition presented by Nelmes & Company against Mrs Ewing in the Sheriff Court of Argyleshire, in which they prayed the Court “to interdict, prohibit, and discharge the defender, or any person or persons acting under her authority or instructions, from selling, applying for a warrant to sell, removing, disposing of, or in any other way interfering with, two billiard-tables, twenty-four cues, two marking boards, four butts, four rests, six balls, one gas pendant, one table-cover, and a set of billiard rules, all belonging to the pursuers, and partly situated in the billiard-room now or lately occupied by John Neilson in Argyll Street, Dunoon, and partly in the Argyll Hotel, Dunoon, occupied by John Kennedy.” They averred that the whole of these articles belonged to them, and that they removed them in consequence of Neilson falling into arrear in the payment of the hire.

They pleaded—“(1) The whole effects condescended on being the property of the pursuers, and having been removed by them from the defender's premises, were not subject to sequestration nor hypothecated for any rent to become due to defender after the date of their removal.”

The defender pleaded—“(2) The said billiard-tables and pertinents having belonged to the said John Neilson, and having for several years been used by him within the premises let by the defender to him, are subject to the right of hypothec for the current year's rent. (3) Assuming that the said billiard-tables and pertinents were hired by the said John Neilson from and belong to the pursuers, they are nevertheless, as such, subject to the landlord's hypothec.”

On 22d December 1882 the Sheriff-Substitute ( Campion) sustained the second and third pleas for the defender, and refused interdict.

“ Note.—There is no dispute in this case as to the facts, the only question raised is the one as to whether a billiard-table lent out on hire is subject to the landlord's right of hypothec. The principle involved seems to be settled by the case Penson and Robertson, June 6, 1820, F. C. 147. It was there decided that a musical instrument lent out on hire was so subject. The case of a billiard-table hired for use by a tenant of a billiard-room must surely be a still stronger one in the same direction, as it is upon the table alone that the landlord has to trust for security for his rent.”

The pursuers appealed to the Sheriff ( Irvine), who on 28th February 1882 dismissed the appeal and affirmed the judgment of the Sheriff-Substitute.

“ Note.—The Acts of Parliament which first modified and afterwards abolished the landlord's right of hypothec in agricultural subjects did not touch the corresponding right over the invecta et illata, ‘the furniture and utensils of the house,’ in urban tenements. All the former authorities are therefore still applicable to questions on this head. These authorities extend over a long series of years, and in so far at least as regards the matter of furniture lent on hire are sufficiently clear and distinct.

Thus Bankton, whose ‘Institute of the Laws of Scotland in Civil Rights' was published in 1751–3, classes among the subjects of hypothecation as invecta et illata not only the tenant's own goods, but ‘such of other men's as are used as furniture to the same, for by consenting to their being applied to that use, the owners are understood to agree to their being subject to the rent,’ or, as he also expresses it, ‘are deemed in law to undertake the hazard of the rent’—b. 1., tit. 17, sec. 11.

The decision in the early case of Wauchope v. Gall, November 30, 1805, Hume's Decisions, 227, is to the same effect, that hypothec for the rent of a dwelling-house affects furniture lent to the tenant for hire.

Similarly the cases of Wilson v. Spankie, December 17, 1813, Fac. Coll., coupled with that of Penson and Robertson, Petitioners, June 6, 1820, Fac. Coll., are treated by Professor More as warranting the conclusion that furniture lent to the tenant, whether for hire or not, is liable to the landlord's claim of rent—Notes to Stair, lxxxiii. And although in some of these cases mention is made primarily of dwelling-houses, yet the same law holds as to shops, where the right of hypothec extends as well over the goods for sale as over the furniture.—Hunter, 5, 24, 11, 2, p. 376 of Mr Guthrie's edition, where all the authorities are carefully analysed, and in the opinion of the learned author have fixed the law of the whole question.

It is not of vital consequence to the present case that the question as to furniture lent gratuitously is not, perhaps, quite so clearly settled, and that in the latest case on the subject that point was left open.— Adam v. Sutherland, November 3, 1863, 2 Macph. 6.

It may also be observed that in the case of Jaffray v. Carrick, November 18, 1836, 15 S. 43, quoted by the pursuers, while Lord Medwyn, on a special ground, was in favour of the landlord's

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claim of hypothec, the other Judges carefully guarded themselves against being held to decide any general question.

“In particular, Lord Glenlee said, ‘We have nothing to do with the law as to furniture lent for or without hire.’ Lord Meadowbank went on the particular point that ‘the furniture was the property of the respondent, and tortuously withheld from her;’ and the Lord Justice-Clerk (Boyle) expressly said that it was not necessary to decide any general point, that ‘he went on the specialties of the case,’ which were there clearly made out.

“It may also be noted that in the present case the hired furniture formed substantially the whole plenishing on the premises, and therefore the question is not here raised which was mooted in Adam v. Sutherland as to a possible exception from the general rule in the case of a single article of hired furniture, as in the example put by Lord Deas of ‘forms hired for an evening party or china for a dinner party.’ Nor does it seem necessary here to discuss at length the question ingeniously argued for the pursuers as to the doctrine of reputed ownership. It appears from the general concurrence of authorities that the true principle of this hypothec is, as Bankton puts it, the knowledge by the lessor of the risk which he runs when he brings his furniture into the premises.

“On the whole matter, it appears to the Sheriff that the contention of the defender is well founded, that she has a right of hypothec over the hired furniture within the premises belonging to her, which practically constituted her only security for the rent; that she is entitled to enforce that right by the usual means of sequestration and sale, or, if need be, within three months after the term, ‘to follow the property into the possession of another landlord, and there sequestrate the invecta et illata that had formerly been in her house’ — per curiam in Christie v. Macpherson, December 14, 1814; Fac. Coll.; and Note 151 by Ivory to Ersk. ii. 6, 64.”

The pursuers then appealed to the Court of Session, and argued—The right of hypothec was one thing, the right to follow specific articles another. If an article were in a tenement—except such as might be there without the will of the owner—it was liable to attachment for the whole year's rent; if not attached, then it was not liable at all. The landlord's right of hypothec did not, without sequestration, prevent the lessor from removing his property at the end of the term. Even if the article was liable for the term before removal, it was not liable for the term following.

Authorities—Bell's Comm. (7th ed.) ii. 30; Ersk. Inst. ii. 6, 64; Adam v. Sutherland, November 3, 1863, 2 Macph. 6; Blackwood v. Alexander, 2 Br. Supp. 228; Tennant v. M'Brayne, February 28, 1833, 11 S. 471; Penson and Robertson, Petitioners, June 6, 1820, F.C.; Wilson v. Shankie, December 17, 1813, F.C.; Wauchope v. Gall, November 30, 1805, Hume 227; Christie v. Macpherson, December 14, 1814, F.C.

Argued for respondents—There was a distinction between a case where a single article has been hired for a specific purpose and for a limited time, and a case such as the present, where the articles hired were really the whole plenishing of the premises.

Authorities—Bell's Prin. sec. 1276; Wells v. Proudfoot and Miller, Hume 225.

At advising—