Scottish Court of Session Decisions

This was an action of sequestration for rent founded upon a decree of maills and duties obtained by the holders of bonds and dispositions in security over property belonging to their debtor in the North Back of Canongate, Edinburgh.

This action was raised in the following circumstances—Joseph Rowat, inspector of branches, Royal Bank of Scotland, Edinburgh, and others, trustees of the late Gilbert Innes Smith, were the holders of two bonds granted by David Chalmers senior over the subjects possessed by him at No. 6 North Back of Canongate, Edinburgh.

The interest on the bonds having fallen into arrears, Smith's trustees entered into possession of the security subjects under a decree of maills and duties, dated 21st November 1882. In this action David Chalmers senior was called as principal debtor, as also the trustee upon his sequestrated estate.

After Smith's trustees had entered into possession of the subjects they came to an arrangement with David Chalmers junior, a son of the debtor in the bond, and the sole partner of the firm of D. & J. Chalmers, whereby it was arranged that he should collect the rents of the various properties mentioned in the bond, and pay them over to the agent for Smith's trustees. The Messrs Chalmers continued to occupy the premises from 1882 down to the date of the present action. The decree of maills and duties did not include the names of the firm of D. & J. Chalmers.

Smith's trustees raised the present action of sequestration for two half-years' rent in the Sheriff Court at Edinburgh, and averred that as David Chalmers junior did not carry out satisfactorily their arrangement with him they had terminated it prior to Whitsunday 1888, and engaged another collector. They also alleged that the firm of D. & J. Chalmers and David Chalmers senior had agreed to pay them rent for the premises in question at the rate of £40 per annum, and that sum now sued for was one year's rent at that rate, less £5 paid to account.

The defenders (D. & J. Chalmers and David Chalmers senior) averred that D. & J. Chalmers had been in possession of the subjects 6 North Back of Canongate since 31st August 1882, in virtue of a lease for nineteen years, entered into between D. & J. Chalmers & Company, and David Chalmers senior, and dated Martinmas 1882.

On 26th July 1889 the Sheriff-Substitute ( Rutherfurd) granted warrant to sell as much of the sequestrated effects as could pay the pursuers £35, with interest and expenses; and to this interlocutor the Sheriff ( Crichton) on 9th August 1889 adhered.

The defenders appealed to the Court of Session.

After hearing parties on the question of the regularity of the proceedings in the action of maills and duties, their Lordships of the First Division upon 9th November 1889 remitted the case to the Sheriff Court for proof, which was taken. The evidence was conflicting, but it appeared that at the date of the action of maills and duties the security-subjects, or at least part of them, were occupied by David Chalmers senior, or that they were let to the firm of D. & J. Chalmers, who had not been called as defenders.

On 31st January 1890 the Sheriff-Substitute ( Rutherfurd), after making various findings in fact, dismissed the action.

To this interlocutor the Sheriff, on 15th March 1890, adhered.

The pursuers appealed to the Court of Session, and argued—The real party in possession of this subject at the date of the decree of maills and duties was D. Chalmers senior's trustee, and he was properly called. Chalmers' position was that of a mere squatter; he was called also for any interest he might have. If a pursuer of maills and duties calls all the tenants in possession at the date of his action, and obtains his decree, it holds even against tenants coming into possession subsequent to the decree — Ersk. iv. 1, 49. In the present case possession by the firm did not follow under this lease until after the signetting of the summons of maills and duties, and the decree in the action of maills and duties was sufficient to entitle the pursuers to sequestrate for rent.

Authorities— Blair v. Galloway, December 21, 1853, 16 D. 291; Shaw v. Black, January 15, 1889, 16 R. 336; Robertson's Trustees v. Gardner, May 31, 1889, 16 R. 705.

Argued for the respondent—An action of maills and duties will give a creditor no right against a proprietor who is in possession of his own premises, because it is only against a rent-producing subject that a creditor can have an action of maills and duties. As D. Chalmers senior was in possession of the subjects at the date of the action of maills and duties, the decree in it could not in any way avail the creditors. If it were held that the firm were in possession at the date of the decree their rights could not be affected, as they were not called in the action.

Authorities—Cases cited supra.

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