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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kennedy v. Creyk [1887] ScotLR 25_105 (6 December 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/25SLR0105.html
Cite as: [1887] SLR 25_105, [1887] ScotLR 25_105
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[
v.
Facts:
The tenant of a farm sub-let the winter grazing for the period from 1st November 1885 to Whitsunday 1886 to two sub-tenants, at the rent of £140, for which a bill was to be granted on 1st January, payable on 1st April. The sub-tenants granted a written obligation to leave 300 sheep on the farm so long as the rent remained unpaid. The bill was dishonoured. On 5th May 1886, the rent remaining unpaid, the tenant presented a petition to the Sheriff for warrant to sell by public roup the sheep stock belonging to the sub-tenants, and apply the proceeds in payment of the rent. The sub-tenants did not enter appearance. The Sheriff on 31st May, in respect the sub-tenants had not entered appearance, granted warrant to the Sheriff-Clerk to sell by public roup as many of the sheep as would pay the rent claimed. The number of sheep sold was 204, and they realised the price of £234. One of the sub-tenants then raised an action against the petitioner to reduce the Sheriff's warrant, and to recover damages, on the ground (1) that the warrant was illegal in respect the petitioner had not obtained any decree for the rent, nor used any diligence on the bill, and (2) that the use of the warrant was oppressive, as the number of sheep sold was more than necessary to pay the rent.
Held ( diss. Lord Rutherfurd Clark) (l) that the petitioner had taken a legal and proper
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course in applying to the Sheriff for a warrant to sell the sheep, which were on the farm as a pledge for past due rent, and that the warrant granted by the Sheriff was legal; (2) that even if the warrant was illegal, the pursuer was barred, by not appearing before the Sheriff, from afterwards objecting to it; and (3) that the number of sheep to be sold was a matter for the judge of the roup to determine. Action dismissed as irrelevant.
This was an action at the instance of John Kennedy, farmer and cattle dealer, Soillerie, Insh, near Kingussie, against Alexander Creyk, surgeon, Dalvey, for the reduction of a warrant or decree pronounced by the Sheriff-Substitute at Elgin, by which warrant was granted to the defender to sell by public roup the sheep stock then belonging to the pursuer and his fellow-tenant William Cameron upon the grazing of Dalvey, which had been sub-let by the defender to the pursuer and Cameron. There was also a conclusion for £1200 damages.
The pursuer averred that the defender was the tacksman of the farm of Dalvey, and that he had sub-let the winter grazings to the pursuer and William Cameron for the period from 1st November 1885 to Whitsunday 1886, at the rent of £140, payable by bill at three months after date, from 1st January 1886—“(Cond. 3) … An agreement was entered into between the defender on the one hand, and the pursuer and the said William Cameron on the other, which was dated 30th December 1885, whereby the pursuer and the said William Cameron agreed to leave on Dalvey farm and grazing, so long as the rent of £140 remained unpaid, 300 head of sheep at least against the said rent. (Cond. 4; On said 30th December 1885 the pursuer and the said William Cameron granted to the defender a bill for £140, dated 1st January 1886, payable three months after date, in payment of the said rent of £140.” This bill was dishonoured. “(Cond. 5) In April 1886 the defender applied for and obtained an interdict in the Sheriff-Court at Elgin against the pursuer and the said William Cameron, whereby the pursuer and the said William Cameron were interdicted from removing their sheep from the said farm and grazing so as to reduce the number below 300 head until they should pay the rent of £140 to the defender. (Cond. 6) On 5th May 1886 the defender presented a petition in the Sheriff-Court at Elgin at his instance against the pursuer and the said William Cameron, which prayed the Court to grant warrant to the said defender, at the sight of such person as the Court might think proper, to sell by public roup the sheep stock then or lately belonging to the pursuer and the said William Cameron, and then upon the farm and grazing of Dalvey aforesaid, and lands adjoining the same, and after deducting the expenses of process and sale to apply the proceeds in payment of the sum of £140, being the rent for the grazing of the said farm and lands due by the pursuer and the said William Cameron to the defender.” The pursuer was duly cited, but did not enter appearance. “Accordingly, on or about 13th May 1886, the said Sheriff-Substitute, on the motion of present defender, and in respect the pursuer and the said William Cameron had not entered appearance, granted warrant to Mr William Fleming, Sheriff-Clerk Depute, Grantown, to sell by public roup as many of the sheep mentioned in said petition as would satisfy and pay the rent claimed and the expenses of process and sale, and appointed the said sale to take place at the Market Green, Grantown, on Monday, 31st May, at twelve noon, after advertisement of the same. (Cond. 7) The only grounds upon which the said petition was presented were that the pursuer and the said William Cameron were sub-tenants of the said grazing under the defender, and that they had made the said agreement to leave 300 sheep on the said farm and grazing so long as the rent of £140 remained unpaid, and that the said rent was past due and had not been paid. (Cond. 8) The warrant of sale granted on the said petition was wholly illegal and contrary to law. The defender had not obtained any decree against the pursuer and the said William Cameron for the said rent of £140, and he had not protested or used any diligence on the bill granted to him for the said rent of £140. The said warrant was not in accordance with any form of diligence known to the law.”
The defender proceeded to carry the warrant of sale into effect on or about 31st May 1886, and drove the whole sheep found on the grazing to Grantown to be sold. There were 204 sheep, some of which belonged to the pursuer and William Cameron, and others to Peter Kennedy, James Fullerton, Alexander Cameron, and Roderick M'Gregor, persons who had an arrangement with the sub-tenants for grazing their sheep on the lands. The whole of the sheep were sold for £234, the judge of the roup having refused to entertain a higher bid made on behalf of the pursuer.
The pursuer averred—“(Cond. 15) The sheep illegally and wrongfully sold by the defender as aforesaid were of the value of £350 or thereby. The said sheep which belonged respectively to the said Peter Kennedy, James Fullerton, Alexander Cameron, and Roderick M'Gregor were of the value of £195 or thereby, and the said several parties hold the pursuer liable for the value of their sheep. After deducting from the said sum of £350 the sum of £140 due to the defender for rent, there remains a balance of £210, which represents the amount of loss sustained by the pursuer in the sheep alone. The compensation due by the defender to the pursuer for the injury done by the said illegal and wrongful proceedings to his business, reputation, and credit amounts to at least the sum of £1000.”
The pursuer pleaded—“(1) The said warrant of sale, and whole grounds and warrants thereof, being illegal, the pursuer is entitled to decree of reduction as craved.”
The defender pleaded—“(1) The pursuer's averments are irrelevant. (4) The pursuer is barred by acquiescence and by his actings from maintaining the illegality of the said proceedings.”
On 7th July 1887 the Lord Ordinary (
Fraser ) issued this interlocutor:—“Finds that the pursuer's averments are irrelevant; and further, that he is barred by his own actings from insisting in the illegality of the proceedings complained of: Therefore dismisses the action, and decerns: Finds the defender entitled to expenses, &c.Opinion.—The pursuer of this action, along with William Cameron, a sheep-dealer at Newton
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more, became sub-tacksman under the defender of the winter grazings of the farm of Dalvey and lands adjoining, from 1st November 1885 to Whitsunday 1886, at the rent of £140, payable by bill at three months after date from 1st January 1886. This bill of £140 was duly granted, and became payable on 1st April 1886, and was then dishonoured. On 30th December 1885 an agreement was entered into between the defender on the one hand, and the pursuer and William Cameron on the other, whereby it was agreed that the pursuer and Cameron should keep on the farm and grazing (so long as the rent of £140 remained unpaid) 300 head of sheep at least against the rent, The bill for £140 being dishonoured the defender on the 5th of May 1886 presented a petition to the Sheriff against the pursuer and Cameron, praying for warrant, at the sight of a person to be named by the Court, ‘to sell by public roup the sheep stock now or lately belonging to the defenders, and presently upon the farm and grazing of Dalvey aforesaid, and lands adjoining the same, and after deducting the expenses of process and sale to apply the proceeds in payment of the sum of £140, being the rent for the grazing of the said farm and lands due by the defenders to the pursuer, and payable on 1st April 1886, the pursuer consigning the balance, if any, remaining after satisfying said claims in the hands of the Clerk of Court, to await the further orders of Court.’ This petition was duly served upon the pursuer of the present action and upon Cameron. No appearance was entered by either of these persons, and the Sheriff-Substitute on the 13th of May 1886, ‘on the motion of the pursuer, in respect the defenders have not entered appearance, holds them as confessed, and grants warrant to’ the Sheriff-Clerk Depute at Grantown ‘to sell by public roup as many of the sheep mentioned in the petition as will satisfy and pay the rent claimed, and the expenses of process and sale,’ and an order was made for advertisement in the newspapers and by handbills. The sale took place on the 31st of May 1886. The pursuer's period of possession of the grazings had by this time expired, and the sheep had been left upon the farm. The pursuer attended the sale, and an agent of his, Donald M'Dougall, took part in the bidding on behalf of the pursuer. When M'Dougall had ceased to bid, the pursuer himself continued the bidding, which, however, was not accepted by the Sheriff-Clerk Depute, who was conducting the sale, and ultimately the sheep were knocked down to Peter M'Donald, a cattle-dealer in Grantown, at the price of £234.
It is now said that the whole of these proceedings were illegal, in respect that the defender had not obtained a decree against the pursuer for payment of the rent, and had not proceeded to carry out diligence by way of poinding. The Lord Ordinary is of opinion that the objection to the proceedings is not well founded, and that decree of reduction of the warrant of the Sheriff-Substitute cannot be granted. The sheep were upon the farm as a pledge for the payment of the rent. The debt was constituted by the bill which was overdue at the time when the sale took place.
The pursuer's right of possession of the grazings had terminated, and the sheep were in the defender's possession at that time. As the sheep required at once to be attended to, it was a very proper course to apply to the Sheriff for a warrant to sell them.
The pursuer is moreover barred from stating any objection to the course which was adopted. He lay bye and entered no appearance, and stated no objection to the granting of the warrant. After advertisements were sent out intimating that the sale would take place, no step was adopted by him in the way of preventing it, either by getting the warrant recalled or otherwise. Nay, further, he attended at the roup, and was himself a bidder, without any protest against the carrying out of the warrant, except stating that some of the sheep that were offered for sale did not belong to him but to other persons named. If this were the case the owners of these sheep may have their remedy against the defender. It is therefore in vain in these circumstances to insist in an action of reduction at the instance of a party who has so conducted himself.”
The pursuer reclaimed, and argued—The granting of the warrant was illegal. Before Creyk applied to the Sheriff for a warrant to sell the sheep he ought to have got a decree against Kennedy, and carried out his diligence, but he did not do so. Even if the warrant was legally granted, it was illegally and oppressively carried out. The way in which the sheep were sold was improper; the whole number were put up in one lot, and knocked down at the price of £234, when they were really worth £350. The proper way would have been for the judge to have had an estimate made of the number of sheep which when sold would bring the necessary sum to pay the debt and expenses, but by the system of selling all the sheep a sum exceeding the necessary amount by £90 had been obtained— Le Conte v. Douglas & Richardson, December 1, 1880, 8 B. 175; Robertson v. Galbraith, July 16, 1857, 19 D. 1016; M'Kinnon v. Hamilton, June 21, 1866, 4 Macph. 852.
The respondent argued—It was admitted that the pursuer was to leave a certain number of sheep upon the farm in security of the rent. A bill was given for the rent; this was dishonoured, and whenever the pursuer's time of occupation of the farm came to an end at Whitsunday, Kennedy was entitled to have the sheep upon the farm, whether they belonged to the subtenants or not, seized and sold to pay his rent. It was not necessary to have a completed diligence for this. As regarded the question of oppression, the defender had nothing to do with that, as the matter was entirely under the management of the judge of the roup. But Kennedy had never made any appearance in the process to enable him to object. The pursuer's averments were irrelevant, as the Lord Ordinary had found.
At advising—
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I cannot see anything to justify the imputation that he exceeded the limits of that discretion. There is one matter which has not been cleared up—and which indeed there has been no attempt to clear up—namely, how far the sheep sent to this farm in implement of the pursuer's obligation belonged to him or to other people. He had sent sheep there for winter grazing. That is what is said. Whether that is so or not we hardly know. The presumption is that they belonged to the pursuer. So far as that is concerned, however, no reasonable objection has been stated. Now, that these sheep produced more money than was necessary to pay the debt seems quite true, but we do not know how far that result was contributed to by the fact that they were put up in a lot, and so perhaps brought more than if they had been sold in any other way. But however that maybe, that was a matter which was essentially a proper one for the judge of the roup to determine. I am not inclined to interfere with the Lord Ordinary's judgment on that head. I think the tenant has brought this misfortune upon himself by not appearing before the Sheriff at the stage when the warrant was granted, and delaying till the last moment to make his voice heard at all. As I have said, I am not disposed to interfere.
I say I think he took the proper course in simply treating the sheep as a pledge for the past due rent or debt—as a pledge put upon his farm, which could not be removed therefrom by the owner without a breach of his written obligation. I think that he adopted a legal course as well as a proper one in applying to the Sheriff for a simple warrant to turn the subject of the pledge into I money and so pay the debt. That at least was not a lawless proceeding. He applied to a court of justice to do justice in the matter, and called upon his adversary to appear to object to the course he was pursuing if he had any objection to offer. His adversary, the pursuer, had no objection, and accordingly did not appear. The Sheriff thereupon, proceeding according to the ordinary rules and practice of the Sheriff Court, held the non-appearing defender as confessed—that is, as consenting to the remedy against him being granted—the remedy which was asked. The remedy was granted in the usual way, and with the usual precautions. There is not the least pretence for saying that there was anything lawless in the matter. The interlocutor is in these words—“On the motion of the pursuer, in respect that the defenders have not entered appearance, holds them as confessed, and grants warrant to the Sheriff-Clerk Depute at Grantown to sell by public roup as many of the sheep mentioned in the petition as will satisfy and pay the rent claimed, and the expenses of process and sale;” and there followed the usual order for advertisement, and so on. The Sheriff therefore takes all proper precautions to see that justice is done. He directed that the result should be reported to him. The Sheriff-Clerk Depute at Grantown proceeded to execute the order of the Sheriff, and in the absence of any specific statement to; the contrary, I must assume that it was all regularly done. He sold as many sheep as he thought proper to pay the debt and the expenses. I assume that he acted judiciously in the matter. It was all committed to his judgment. He sold what would at first sight have appeared to me to be an extra large number, but I am not so much the judge of that as he is. The Sheriff, I repeat, committed the matter to him, and it was his duty to report; and after that stage this very pursuer entered appearance in the process to discuss the matter of expenses. He did not then complain to the Sheriff that the Sheriff-Clerk Depute at Grantown had acted irregularly and oppressively in executing the order, he being the party responsible. He executed the order and conducted the sale, and if any party had a complaint to make against him, or what he had done, this process was the proper place to make it, and the Sheriff was the judge to whom the complaint should have been made. But there was nothing of the kind suggested; there was merely a question, which the Sheriff decides, as to the expenses of the sale. He orders the Sheriff-Clerk Depute to consign the amount he received on executing the order, and the debt and the expenses are ordered to be paid, as they are ascertained, in the presence of this pursuer, for by that time he had entered appearance.
When all that is terminated he comes here with an action asking us to set aside the whole proceedings as lawless. He says it was beyond the power of the Sheriff to order the sale of the sheep, as they were on the farm as a pledge, especially since the winter grazings did not terminate until Whitsunday, and that therefore they were in his own possession when this summary and perfectly sensible-looking remedy could be lawfully resorted to. I think he cannot be heard to say that now. A party must attend to his interests in the ordinary manner, and if he objects to what
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For these reasons I am of opinion that the reclaiming-note ought to be refused, and the judgment affirmed, and with expenses.
The first question is, whether there was a legal warrant for the sale of the sheep? The sheep are said to have been a security for the rent, and to have been on the farm as security for the rent, and so I think they were, but till the 15th of May—I take, as I am bound to do, the averments of the pursuer—he was in possession of the grazings, the lease continuing up to that time. The sheep were thus in the possession of the pursuer. They were not in the possession of the defender. They were not in his possession in any legal sense. The defender might have prevented the sheep from being removed, because the pursuer had undertaken to allow the sheep to remain on the farm. But although he might thus have prevented the removal of the sheep, they were not in any sense in his possession during the time the pursuer was himself the tenant of the farm.
I further think that it is impossible to hold that these sheep were pledged according to the law of Scotland with the defender, because in order to constitute a pledge it is plain that there must be possession, and possession on the part of the defender I think there was none. Of course if the sheep were pledged to the defender he might in the usual way have applied to the Sheriff for a warrant to sell the pledge, but it was only on the footing that they were pledged that he could take that course, and if they were not pledged I see no justification whatever for that application to the Sheriff, which is simply one for a warrant of sale—an application to sell the property of another while it is in the hands of that other person. It is a perfectly new idea to me that that should be considered a legal proceeding.
What other course was open to the defender I really do not need to consider. All I have to decide upon is, whether the proceeding here was legal, and I confess I cannot bring my mind to hold that it was. It seems to me, therefore, that the present judgment, with the greatest respect to my brethren, is wrong. I think the application made by the defender, and the interlocutor of the Sheriff following upon that application, were both illegal, and that there was no legal warrant for the sale. I do not think that the fact that the pursuer did not make any appearance in that process makes the warrant legal. It would no doubt have been better that he should have appeared in the process and objected, but I cannot go the length of saying that procedure which I think to be quite illegal is made legal or unobjectionable by the fact that the defender in the process—that is, the pursuer in this action—did not think it necessary to appear.
Well, that being so, I think the pursuer is entitled to redress in this action.
But I am further inclined to think that even supposing I was wrong in holding the warrant to be illegal, he is entitled to an issue on the other ground which has been stated at the bar, namely, that according to the allegations of the pursuer it has been executed in a very oppressive way. The warrant was to sell as many sheep as would pay the rent and cover the expense of the sale, and nothing else. Now, sheep were sold to the extent of, I think, £67 beyond what was necessary for that purpose. I do not say whether that could be justified or not. But prima facie it was unjustifiable, and I think the defender ought to be put to justify it if he can. I cannot hold that that was a fair and reasonable execution of the order of the Sheriff in the absence of justification. Therefore I hold the pursuer as prima facie entitled to have the question put to the proper tribunal. Until that tribunal determines the question, I cannot hold that the remedy he now seeks is irrelevant.
It has been suggested that the pursuer has lost his remedy by not having stated his objection in time, since he did not bring it under the notice of the Sheriff when the sale was reported by the Sheriff-Clerk. Again I fail to see what the pursuer could have done, or what he could have said to the Sheriff. The wrong of which he complains was done. It was impossible to undo the sale. He never could have brought under the notice of the Sheriff the improper execution of the warrant that had been granted, except so as to produce some censure on the part of the Sheriff upon what the Sheriff-Clerk had done. He is not asking that here. He is asking damages for illegal use of the warrant, and the Sheriff on the report of the sale would not have considered any such question.
I am sorry to differ on this matter, but the questions are not unimportant, and I express the opinion which I cannot but form on the argument. And although I would have been forced if I had been sitting alone to have sent the case to trial, possibly on both grounds, I end my remarks as I began them, by saying that probably on the whole the most merciful course has been followed by your Lordships.
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The Court adhered.
Counsel for the Reclaimer— Asher, Q.C.— Ure. Agents— Gill & Pringle, W.S.
Counsel for the Respondent— Guthrie. Agents— Boyd, Jameson, & Kelly, W.S.