Scottish Court of Session Decisions

In July 1887 Robert Mackessack, Esquire of Ardgye, Alves, Elgin, presented a petition in the Sheriff Court of Elgin, against Robert Macdonald, his tenant in Cardenhill, Alves, who held a nineteen years' lease from Whitsunday 1887, at a yearly rent of £14, praying, inter alia, for warrant to sell the sequestrated effects on the farm for arrears of rent, and in the event of the subject of hypothec being exhausted, “or the premises being insufficiently furnished and hypothecated after any sale hereunder, to ordain the defender to stock and replenish the said premises so as to afford sufficient security for payment of any remaining rent payable or to become payable as aforesaid; and failing his doing so, within sue] time and at the sight of such person as the Court shall appoint, to grant warrant summarily to eject the defender.”

Upon 27th October 1887 the tenant by minute consented to decree, and upon the same day the Sheriff-Substitute ( Rampini), in respect of this minute, granted warrant for the sale of the whole or a sufficient part of the sequestrated effects to satisfy the arrears due.

Before a sale took place the tenant applied for cessio, and on 12th November 1887 decree of cessio was pronounced. On 10th December 1887 the trustee sold the stock on the farm under the cessio. The landlord lodged a claim with the trustee for £37, 17s. 9d., and on 15th March 1888 the whole proceeds of the estate, under deduction of trustee's commission and expenses, were paid over to the landlord by the trustee. The amount so paid was £20, 15s. 6d., which sum included the past rent, for which decree was craved in the landlord's petition, and also I portion of the current year's rent (Whitsunday 1887 till Whitsunday 1888) of the farm of Cardenhill.

Upon 27th December 1887 the landlord lodged a minute in the following terms—“ Brown, for the pursuer, stated that in respect the trustee under the cessio of the said Robert Macdonald had recently sold off and displenished the said farm of Cardenhill, the event referred to in the prayer of the petition, viz., ‘the subject of the hypothec being exhausted,’ had now happened, and the Court is now moved to ordain the defender to stock and replenish the said farm and premises, so as to afford sufficient security for payment of rent now due or to become due al the term of Whitsunday next; and failing hit doing so within fourteen days at the sight of Harbourne Marius Straghan Mackay, land surveyor, Elgin, or within such other time and at the sight of such other person as the Court shall appoint, to grant warrant summarily to eject the defender and his goods, gear, and effects from the said farm and premises, and to authorize the pursuer to re-let the same for such periods, and for such rent as may appear best, all in terms of the prayer of the petition.” To that minute the tenant upon 18th January lodged the following answer—“That he was proceeding to lay down a crop for the incoming season and was proceeding to stock the said farm of Cardenhill in a husbandlike manner as craved for in said minute.” And upon 19th January 1888 the following interlocutor was pronounced—“Having advised the minute and answers, in respect of the statement in the latter that the defender is now in process of laying down a crop for the incoming season, and of stocking the farm of Cardenhill, remits to Mr Harbourne Marius Straghan Mackay, land surveyor in Elgin, to see the same carried out quam primum, and to report to the Court not later than 19th of February next.”

Upon 18th February 1888 Mr Mackay reported as follows—“In terms of remit from the Sheriff-Substitute of Elginshire, I to-day visited the possession of Cardenhill, occupied by Robert Macdonald. It contains about 23 acres of arable land divided into six lots. Of this land one lot should have been sown out with young grass, but this has not been done. About 12 acres should

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have been ploughed, and there is only a little over 4 acres. The turnip shift last season was not properly laid down, and having got no artificial manure the crop was a failure. There is no stock of any kind upon the place. The ploughing has been done by John Grant, Burnside, a neighbour and a brother-in-law of the tenant; but even although he should plough the remainder, the land is in such a poor condition and out of regular rotation, and there being no dung of any kind upon the place, this crop cannot in my opinion be laid down in a satisfactory manner by the present tenant.” And upon 22nd February 1888 the following interlocutor was pronounced—“The Sheriff-Substitute having heard parties' procurators on the report by Mr Mackay, and in respect of the statements therein contained, grants warrant to eject, in terms of the prayer of the petition; also authorises the pursuer to re-let, and interdicts, all as prayed for: Finds the defender liable in expenses; modifies the same to the sum of Three pounds three shillings sterling, and decerns against him there-for; and allows extract of this decree to go out after twelve o'clock on Saturday first.”

No appeal was taken from the Sheriff-Substitute's interlocutor, but Macdonald, the tenant, raised an action in the Court of Session to have the decree of ejection reduced.

In this action it was, inter alia, averred by the defender Mackessack that the pursuer's tenancy was constituted by an entry in the estate books, and that he held his tenancy under a set of regulations and conditions of let applicable to the whole estate. By article 16 thereof it was provided, that in the event of one whole year's rent of any farm remaining unpaid, or if the tenant should be sequestrated, or made bankrupt, the lease should, in the option of the proprietor, ipso facto cease and determine.

The pursuer Macdonald averred in answer—“… The entry in the estate books referred to was made by the landlord's factor; the pursuer did not sign the landlord's books, nor the regulations and conditions referred to. No copy of said regulations and conditions was furnished to the pursuer or seen by him at or before the date of said lease, and he never agreed to said regulations and conditions, and, in particular, he never agreed to article 16 thereof.”

The pursuer pleaded—“(2) The pretended decree in question having proceeded upon an incompetent application, and the Court having no jurisdiction in the circumstances to pronounce said decree, the same is inept, and should be reduced. (3) Said pretended decree being unfounded and unwarranted, and the proceedings complained of being irregular and oppressive, the pursuer is entitled to have the same reduced and set aside.”

The defender (the landlord) pleaded—“(1) The pursuer, being an undischarged bankrupt, is bound to sist his trustee as a party to the present action, and, failing this being done, or caution being found for expenses, the present action should be dismissed. (3) The pursuer has no title or interest to sue. (5) The decree of the Sheriff having been competently pronounced, and no suspension thereof having been brought, the defender is entitled to absolvitor. (6) In respect that the pursuer has incurred an irritancy, the defender should be assoilzied.”

Upon 6th July 1888 the Lord Ordinary ( Lee) pronounced the following interlocutor:—“Repels the first and third pleas-in-law for the defender: Finds that the decree of ejection complained of was incompetent, and was not pronounced of consent of the pursuer: Therefore repels the defences; reduces, decerns, and declares in terms of the conclusions of the summons, &c.

“ Note.—(1) I repelled the plea that the pursuer must sist his trustee or find caution, because the action in substance is an action to defend the pursuer in the possession of his farm by restoring him against a decree of ejection which is said to have been incompetently and illegally pronounced. The case, I think, falls fairly within the principle of the decision in Stephen v. Skinner, 22 D. 1122.

(2) Upon the merits of the action two questions were discussed—(Firstly) Whether the decree of ejection could be maintained on the ground that it was founded on and justified by the conventional irritancy alleged in the answer to Cond. 1; and (secondly) whether it was good as a decree by default, or on the ground that the pursuer by his minute consenting to decree, in terms of the leading conclusion of the petition, was barred from objecting to it.

The former of these questions it is clear must be answered in the negative. The Sheriff Court proceedings show that the decree of ejection was not in fact founded on the irritancy, or upon any allegation that it had been incurred, so that even if the Sheriff Court had jurisdiction to pronounce decree of ejection upon such a conventional irritancy not declared, the ejection could not be sustained upon that ground. It appears very doubtful, however, whether in this case a process of summary ejection was competent before the Sheriff, for the case was not one in which the pursuer was possessing without any title— Horn v. M;Lean, 8 S. 329; Nisbet v. Aikman, 4 Macph. 284.

But on the question whether the decree can be sustained as a decree by default, there was, it was thought, more to be said. It was contended that the Sheriff's interlocutor of 19th January, remitting to a man of skill to see the defender's proceedings carried out, ‘and to report to the Court not later than 19th February next,’ followed by the report of 18th February, proved that the pursuer was in default. The decree bears to be ‘in respect of the statements therein contained,’ viz., contained in Mr Mackay's report. But the pursuer's position, as shown in the minutes and answers, was that he was proceeding to stock the farm, the stock which had been upon it having been sold for behoof of the landlord and other creditors in the way explained on record. Now, the report, although it states that there was no stock on the farm on 18th February, does not instruct that there was no stock upon the 19th, and does not negative distinctly the statement that the tenant was ‘proceeding to stock,’ &c. In short, the Sheriff Court proceedings do not show any default committed. I think that in the absence of any definite order there was a miscarriage in point of procedure, of which the pursuer is entitled to take advantage.

With regard to the case of Scott, 7 S. 481, I think it does not apply here; there is nothing in the proceedings to show that the pursuer consented to decree of ejection, or that he is barred

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in any way from maintaining his objections to the decree.”

The defender reclaimed, and argued—(1) The case of Stephen v. Skinner, May 31, 1860, 22 D. 1122, relied upon by the Lord Ordinary in repelling the first plea-in-law, was not in point, because there the case had never been tried at all; it had proceeded upon a decree in absence, and the trustee, who had declined to sist himself, had a personal interest adverse to that of the suspender. (2) The Sheriff had jurisdiction. It was a question whether before 1877 the Sheriff could eject summarily for a legal irritancy. He could for a conventional irritancy, or for desertion, and, by custom perhaps, for legal irritancy in urban subjects. He could perhaps summarily eject for non-stocking even in agricultural subjects, on the ground that that was equivalent to desertion. But all such questions had been set at rest by the Sheriff Court Act of 1877, which gave the Sheriff the same power to deal with heritable subjects as the Court of Session had, provided only the value of the subject in dispute did not exceed the sum of £50 by the year, or £1000 value, and the action was not one of adjudication or of reduction—Bell's Prin. 1258; Bell) on Leases, ii. 8; A. of S., December 14, 1756; Ross M'Kye v. Nabony, December 4, 1780, M. 6214; Tait v. Gordon, July 3, 1828, 6 S. 1055; Horn M'Lean, January 19, 1830, 8 S. 329, and 2 Deas & And. 182; Thomson v. Handyside, December 27, 1833, 12 S. 557 (Lord President Hope); Wright v. Wightman, October 30, 1875, 3 R, 68; Sheriff Court Act 1877 (40 and 41 Vict. cap. 50), sec. 8. There was no prescribed or statutory order which the Sheriff had neglected to pronounce. He had given the tenant due warning to stock by the terms of the remit to Mr Mackay, and as the tenant had failed to stock after such warning he was entitled to pronounce decree of summary ejection. The landlord had asked that a formal order should be pronounced, and it was only on account of the tenant's minute that the order had taken the form of a remit to Mr Mackay.

The respondent argued—(1) Though nominally pursuer he was really defending his possession, and the Lord Ordinary had exercised a wise discretion in allowing him to proceed without finding caution— Stephen, supra. (2) The Sheriff had no jurisdiction. The petition was not founded upon a conventional irritancy nor upon the Act of Sederunt of 1756, and these were the only grounds upon which the Sheriff had jurisdiction in such cases— Horn, supra. The Sheriff could pronounce a decree ordering the tenant to stock his farm, but he could not carry it out— Horn, supra; M'Dougall v. Buchanan, December 11, 1867, 6 Macph. 120; Dove Wilson's Sheriff Court Practice, pp. 484–487. (3) Even if the Sheriff had jurisdiction the proceedings here had been irregular. No order to stock had been pronounced. Such an order should have been made upon the tenant after Mr Mackay's report, but as it had not been made there had been no default, and the decree of ejection pronounced because of presumed default fell to be reduced.

At advising—