Scottish Court of Session Decisions

In August 1894 John Gilchrist Clark, Esq., of Speddoch, Dumfriesshire, presented a petition in the Sheriff Court at Kirkcudbright against Alexander Gibson, his tenant, under a fifteen years' lease, of which three years had still to run, in the farm of Birkbush, in the parish of Iron-gray and stewartry of Kirkcudbright. In the petition he stated that “The defender is in insolvent circumstances, and diligence has recently been used against him at the instance of certain creditors. He has recently removed the most of his stock from the farm to the extent of almost entirely displenishing the same, and he has left the farm without instructing any proper person to take charge thereof. It is believed that he has gone to America without any intention of returning. The corn crop and the meadow hay crop of the current year are ripe for cutting, and require to be immediately cut and stacked, and unless immediately attended to are in danger of being lost, to the prejudice of the pursuer as proprietor and his legal rights, unless an immediate remedy be obtained in the premises as herein prayed for.”

The pursuer prayed the Court “to appoint a fit and proper person to take charge of the lands and farm of Birk bush, in the parish of Irongray and stewartry of Kirkcudbright, and stock and effects thereon, presently tenanted by the said Alexander Gibson, and to labour and cultivate the whole lands requiring to be laboured and cultivated for the year ending at Whitsunday, and separation of crop 1895, and to reap the crops presently growing on the said farm in order that the pursuer's rights may not be prejudiced; also to purchase all seeds and manures that may be required for the proper cultivation of the land, and generally to do everything necessary in order that the present crop may be suitably reaped, and the crop of 1895 suitably and seasonably sown, and to deal with the crops, stock, and effects thereon, including the selling and disposing thereof, in such way as he may consider best, and to report to your Lordship an account of his outlays and intromissions and management fore-said; and to decern against the defender for whatever balance may become due thereon, with expenses of management and process, reserving to the pursuer all claims competent to him for rent, interest, and expenses, and for damages or otherwise.” The name of Mr Alexander Smith, gardener at Speddoch, was suggested as manager.

Upon 31st August 1894 the Honorary Sheriff-Substitute ( Williamson) granted warrant to cite the defender upon forty-eight hours' inducice.

The execution of citation bore date 31st August, hut the service copy of the petition was dated 1st September.

Upon 3rd September the Honorary Sheriff-Substitute, in respect that the defender had not entered appearance, appointed Mr Alexander Smith, before designed, to take charge of the lands and farm of Birk bush, referred to in the petition, with all the powers craved.

The manager thereafter entered upon his duties, and sold the whole corn, hay, and potatoes, and a portion of the turnip crop on the ground by public roup.

Upon 9th October 1894 the Sheriff-Substitute ( Lyell) remitted the account of the pursuer's expenses, then lodged, to the Auditor of Court to tax and report, and upon 10th October, having resumed consideration of the process, with the Auditor's

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report upon the pursuer's account of expenses, approved thereof; also approved of the report of management produced: Found that there was no balance in the hands of the manager to be consigned in the hands of the Clerk of Court; and discharged the said manager of his intromissions.

Upon 16th October 1894 Alexander Gibson brought an action of reduction against Clark for the purpose of having the following warrants, decrees, or interlocutors reduced, viz., “(First) A pretended warrant of citation, dated 31st August 1894, granted by the Sheriff-Substitute of Dumfries and Galloway, at Kirkcudbright, in a petition presented in the Sheriff Court of the said sheriffdom of Kirkcudbright on said date, at the instance of the defender, the said John Gilchrist Clark, against the pursuer; ( Second) a pretended service of said petition, dated 1st September 1894, following upon said pretended warrant of citation; ( Third) a pretended decree or interlocutor, dated 3rd September 1894, pronounced by the said Sheriff-Substitute of Dumfries and Galloway at Kirkcudbright, in said petition; ( Fourth) a pretended decree or interlocutor, dated 9th October 1894, pronounced by said Sheriff-Substitute in the foresaid petition; and ( Fifth) a pretended decree or interlocutor, dated 10th October 1894, pronounced by the said Sheriff-Substitute in the foresaid petition.”

The pursuer in this action of reduction pleaded—“1. The said pretended decrees or interlocutors having been pronounced irregularly, and incompetently, ought to be reduced in terms of the conclusions of the summons. 2. The said pretended decrees or interlocutors are reducible, in respect they were pronounced (1) in a petition which was incompetent in the Sheriff Court; (2) in a petition at the instance of a person who had no title or interest to insist in the same; and in respect (3) that the warrant for service was irregular and incompetent; (4) that the service following thereon was irregular and incompetent; (5) that the procedure in said petition was incompetent and contrary to the provisions of the Sheriff Courts (Scotland) Act 1876; and (6) that the granting of the prayer of the petition without inquiry into the facts was incompetent and ultra vires; and (7) that the interlocutor making the said appointment was void from uncertainty and ambiguity. 3. In the circumstances condescended on, the pretended decrees or interlocutors ought to be reduced, and the defender John Gilchrist Clark found liable in expenses, and also the defender Alexander Smith in the event of his entering appearance to defend this action.” He reserved his claim of damages in respect of the proceedings complained of.

The defender maintained that the proceedings were regular and competent.

Upon 21st February 1895 the Lord Ordinary (KINCAIRNEY) repelled the pursuer's plea that the warrant for service was irregular and incompetent: Quoad ultra before answer allowed a proof.

Note.—“The pursuer objects to the warrant of citation. This objection is founded on section 9 of the Sheriff Court Act (39 and 40 Vict. cap. 70), which enacts that ‘the sheriff-clerk shall, in all warrants to cite or charge persons furth of Scotland, insert a warrant to cite or charge edictally.’ There is no warrant to cite edictally in the warrant in this case, and it is said that there should have been such a warrant, because the petitioner, in the Sheriff-Court petition, states his belief that the present pursuer had gone to America without intention to return. But the pursuer cannot maintain the plea, because he denies that he had left the country without intention to return. I think that the clause does not require edictal citation whenever a defender happens to be temporarily abroad, but means only that when the circumstances are such as to necessitate edictal citation, according to ordinary practice in the Court of Session, a special warrant for it shall be issued by the sheriff-clerk. I think that I am in a position to repel the plea that the warrant for service was incompetent.”

A proof was taken, the general result of which appears in the opinions of the Judges. As regards the circumstances under which the pursuer left the farm in August, and the provisions he made for its management in his absence, the material parts of the evidence were as follows:—

The pursuer deponed :—“When I left for America I left £35 with my daughter.… It is not true to say that I left without making any arrangements for the charge of the farm. I arranged with Thomas Kirk, the bower, that he was to look after my harvest, and that in return for that he should get £6, 10s. and his own food. Kirk had a servant-girl, about 17 or 18 years of age, who used to do the milking, and I arranged that she should get £4, 10s. for helping with the harvest. There was also a man called Peter Thomson, who had taken the cutting of my hay, and I arranged with him that he should help with the reaper, and I would pay him when I returned.”

The pursuer's daughter Margaret Gibson deponed—“I remember of my father going away to America on 24th August last year. He told me that he was going about a week before he left. He said that he was going to look at some land, and that he might be away for three weeks or a month, but he did not know exactly. He told me that he was going with a Mr Green. My father is a dealer and moves about a good deal, and I was not surprised at his going away. Before he left I got £35 from him to use in the house and to pay workers at the harvest if there were any. He told me that he had engaged for the harvest two workers from Dunscore, and also Peter Thomson, Thomas Kirk, and Kirk's girl. My immediately younger brother is in the habit of working on the farm and looking after the horses, and he had driven the reaping machine the year before last.… Cross.—… He told me that he did not wish people to know much about his going away because they were always saying plenty about things. My father

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did not give me any reason for not wanting people to know that he was going, and he merely said that he did not wish me to speak about it. I did not know that my father was in money difficulty at the time.… Mr Symons and Mr Smith asked me repeatedly where my father was, but I don't think they asked me where he had gone. When they asked me where my father was, I said I did not know because I had not heard from him. It did not occur to me to tell them that my father had gone to America, because I did not think it was any of their business. That was partly because my father had asked me not to tell people where he was going to. I know Mr Smith who had the management of the farm. I remember the first time he came up to the farm and asked about my father. He saw me at that time, and I remember of his asking where my father was, my answer to him being that I did not know.”

Thomas Kirk deponed—“The pursuer gave me instructions as to looking after the harvest in his absence. It was agreed between us that I was to get a wage of £6 or £6, 10s. for reaping the harvest. At that time I had a girl-servant for the milking of the cows, and pursuer said that he would give her £3, 10s. for helping with the harvest. Pursuer also informed me that he had spoken to two women, belonging to Dunscore, as to helping with the harvest. There was also a man, called Peter Thomson, who had been hired for the harvest at another place, but he was to assist us till he went away there. With that staff I think we might have managed to reap the whole harvest, as there was not very much to do.… Cross.—… The pursuer never mentioned anything to me about taking full charge of the farm.… The pursuer left no money with me to pay for the work that I had to do, and he did not tell me that he had left any money with his daughter to pay for the expenses of the harvest. The pursuer did not tell me exactly where he was going to. He was in our house the night he went away, and he then told me that I was to go on with the cutting of the corn, that he had written with instructions to have the mill put in order, that I was to thresh what I could, and that he had arranged with Derby & Sons, Dumfries, to take the oats, and his daughter would lift the money. I then asked the pursuer, in my kitchen, where he was going, and all he said about that was ‘I might be in America before I am back.’ ”

The defender led no evidence.

Upon 27th June 1895 the Lord Ordinary having considered the proof, productions, and whole cause, repelled the reasons of reduction stated for the pursuer and assoilzied the defender.

Note.—“In this case evidence has been led by the pursuer under the proof allowed by the interlocutor of 21st February, and the defender having stated that he had no evidence to lead, the case falls to be decided on the evidence so led by the pursuer. I think it presents very considerable difficulty, which is much enhanced by the want of evidence by the defender, in consequence of which various points are left insufficiently and unsatisfactorily explained.

“I certainly cannot commend the proceedings adopted by the defender, which seem to have been hasty and ill advised. But the question is whether the pursuer is entitled to the remedy which he demands on the grounds which he has pleaded.

The pursuer and defender are tenant and landlord, and the proceedings from which the pursuer, the tenant, seeks redress were commenced by a petition by the defender, as landlord, presented on 31st August 1894, to the Sheriff at Kirkcudbright, which prayed for the appointment of a person to take charge of the pursuer's farm and stock, to cultivate the farm and reap the crop, and to ‘deal with the stock and crop and effects thereon, including the selling and disposing thereof in such a way as he may consider meet,’ and to report.

The prayer was founded on the averments that the tenant was insolvent, that diligence had been used against him, that he had almost displenished his farm, and had left it without instructing any proper party to take charge of it, and had, it was believed, gone to America without intending to return, and that the corn crop and meadow hay were ripe and in danger of being lost.

The Sheriff-Substitute on 30th August ordered citation of the defender on forty-eight hours' warning. On 3rd September he, in respect the respondent, the tenant, had not entered appearance, appointed one Mr Smith (the landlord's gardener) to manage the farm with the powers craved. On 9th October he remitted the landlord's account of expenses to the Auditor, and on 10th October he approved of the Auditor's report and of the manager's report, and found that there was no balance in the hands of the manager.

The conclusions of the action are for reduction of the warrant of citation, the service of the petition, and of these interlocutors. There is no conclusion for damages, and there is no averment that the proceedings complained of have occasioned any pecuniary loss to the pursuer. All that is said about damages is that the pursuer reserves his claim of damages in respect of said illegal and oppressive proceedings.

The defender has not pleaded that the action is incompetent. The pursuer's objection to the warrant of citation was repelled by the interlocutor of 21st February, and therefore the first conclusion for reduction must be rejected. The action otherwise remains now to be disposed of.

The document sought to be reduced secondly is said to be the service of the petition, stated to be ‘dated 1st September 1894.’ The only document which has that date is the service copy of the petition; and defender contends that the document so described must needs be the service copy, and that there is no conclusion for reduction of the sheriff-officer's execution, which bears date 31st August 1894. If this contention be sound, this conclusion for reduction

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must also be rejected, because it would be an absurd, meaningless, and wholly ineffectual proceeding to reduce a mere service copy, leaving the execution unimpeached. But if this conclusion be directed against the sheriff-officer's execution, which bears date 31st August, as I suppose was intended, then I am of opinion that no sufficient ground has been shown for reducing it. I now understand that the defender stands by it, and maintains that unless it is reduced it must bear faith, and establish the service of the petition on the 31st August. It is a suspicious looking document certainly, and I should not have been surprised had evidence been led that its date was erroneous. But there is, properly speaking, no such evidence. The pursuer did not examine the sheriff-officer, and the pursuer's daughter was unable to say on what day of the week the service was made. The improbation of the sheriff-officer's execution is left to depend on the service copy alone. The pursuer referred to the case of Dunlop v. Nicholson, 10th July 1827, 5 S. 915, in which in special circumstances it was held competent to refer to a service copy in contradiction to an execution; but the report bears that the case was to be regarded as of a special nature, and not to affect the general rule that a formal execution could not be contradicted by the service copy. And there is no doubt that that is the settled general rule—Stair, iv. 42, 12; Erskine, iv. 2, 5; M'Donald v. M'Leod, January 11, 1726, M. 3765; A. S., July 10, 1839, section 91. In this case there is no reason whatever for preferring the service copy to the execution. They bear different dates, and one of them must bear a wrong date. But there is no reason for saying that it is the execution which is misdated. Therefore I think that on the evidence which has been led, the execution cannot be reduced The point raised, it will be observed, is entirely technical. It is not suggested that the pursuer suffered any prejudice from any defect in the citation.

Now, when the petition was brought before the Sheriff on the 3rd September, the sheriff-officer's execution appended to the petition proved to him, and must now be held to prove, that the time for entering appearance had expired, and that the petition might be competently proceeded with as in absence. I say competently proceeded with, for I do not mean to say that some preliminary inquiry might not have been desirable and prudent in the circumstances. The pursuer founded on the case of Mackenzie v. Monro, November 19, 1894, 32 S.L.R. 43. But that case was different, because the decree reduced was not a decree in absence, but a decree by default for failure to lodge defences; and it was held that there had been no default, because the defender had right to lodge defences during the whole of that day. Here the Sheriff proceeded in absence, and not on default.

There remain for consideration the conclusions for reduction of the three interlocutors. Now, the reasons of reduction of these three interlocutors are specifically set forth in the pursuer's second plea. Seven reasons of reduction are there stated; and I am not prepared to sustain any of these specific reasons.

They are as follows:—(1) That the petition was incompetent in the Sheriff Court. No authority was quoted in support of this reason, and I think it is sufficiently met by the case of Brock v. Buchanan, June 7, 1851, 13 D. 1069. (2) That the landlord had no title or interest. This was maintained on the ground that the Whitsunday rent had been paid. But I have no doubt that the landlord had a title and interest to see that his land was properly cultivated, and the rent fully due at Martinmas properly secured. (3) That the warrant was irregular and incompetent. That reason has already been repelled for reasons which have been stated. (4) That the service was irregular and incompetent. I think the regularity of the service is proved by the undisproved execution of the sheriff-officer. (5) That the procedure was incompetent and contrary to the Sheriff Courts Act 1876. If this reason refers to the contention that the Sheriff's interlocutor was pronounced before the term of citation was expired, I think that reason fails on the grounds explained; and if that be not what is referred to, I do not know what the reference is. (6) That it was incompetent and ultra vires to grant the prayer of the petition without inquiry. I think it was not so, the petition being competently before the Sheriff, and no one appearing to oppose it, although it might have been not unreasonable to have made some preliminary inquiry. (7) That the interlocutor making the appointment was void from uncertainty and ambiguity. I think this reason was not maintained, and I see no ground for it.

I think therefore that the first and second pleas for the pursuer fall to be repelled, and I understand the defenders to maintain that, because no other grounds of reduction are specified, it follows immediately that they are entitled to absolvitor.

There remains, however, the third plea, which, although quite general, might be sufficient if it appeared from the proof that the Court had been imposed on by the averments in the petition, or that substantial injustice had been done.

Struck with the apparent haste of the defender's proceedings, and with the wide character of the prayer of his petition, I thought it possible that the proof might disclose some such case, in which case I am not prepared to say, that these interlocutors might not have been open to reduction. But considering that it is not said that any loss has been caused to the pursuer by the proceedings complained of, and that the circumstances warranted the statements in the petition, I do not think that a case of this sort is made out; although I have the impression that the defender and his agent ought to have acted with more consideration and caution, and made more inquiry before adopting such very summary and trenchant proceedings, an impression which might possibly have been removed had the defender or his agent or the manager given evidence.

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The main facts proved may be stated very shortly:—

The pursuer has been working his farm as a dairy farm, and had a number of cows on it which he had let out to the witness Kirk under a bowing contract. Pending that contract, he, on or about 22nd August, sold all his sheep, and all his cows but three. He drove the cattle to Lockerbie at night. He left the farm on 24th August. Although he seems to have told his family and one or two friends where he was going, he made a secret of his destination, and told his daughter that he did not wish people to know it, and he left then uncertain as to the period of his return. He does not appear to have had any money then until he sold his cattle and sheep, and there were apparently several creditors who were becoming urgent, although the proof on that point is not wholly satisfactory. Even without the evidence of the defender or Mr Symons, his agent, or the manager, one can conclude that the farm must have appeared displenished. It was just on the eve of harvest, almost all his stock had been sold, and he himself had disappeared. No circumstances could have tended more to excite suspicion, and it appears from the pursuer's proof that the defender's agent inquired several times before taking action about the pursuer's absence, and it is clear that the only answer which he got from the members of the pursuer's family was that they did not know where he had gone or when he would return. In the meantime the rumour arose that the pursuer had absconded, and it appears from the proof—in particular from the evidence of Kirk—that this rumour existed before the defender had taken any action. Now, unfortunately the evidence of Symons is withheld, but it seems proved that he was not told of any arrangements made by the pursuer for the cultivation of his farm, or of any money left by him for payment of labour. Now, these were the circumstances under which the defender, in the fear, I suppose, that the crops would go to waste, and that his November rent might be endangered, and that the farm would get into disorder, presented the petition. I think it cannot be said in the circumstances that the averments in it were unwarrantable or overstated the case. The pursuer no doubt puts a different colour on the facts. I do not feel certain that his disclosures have been complete, but he is entitled to say that his actual return on 22nd September refutes the idea that he had absconded. He accounts for the sale of his stock by stating that he had found his farm unsuitable as a dairy farm, and intended to recur to the use of it as a sheep farm, and that for that reason he sold his cows with the consent of Kirk, the bower, and he says that his visit to America was merely to see whether land was to be got there on favourable terms with the view to going there at the close of his lease. All this may be true, and may remove some of the suspicion which his conduct was so much calculated to excite, although I hesitate to say that the pursuer's explanations are wholly satisfactory. But whether it was so or no, I think the combination of circumstances was extremely questionable, and that there is no wonder that they aroused the suspicion that he had absconded—a suspicion which the members of his family apparently came also to entertain.

After the petition was served, no objection of any kind was stated to it, and if the pursuer left his farm under the conditions mentioned without leaving anyone who was in a position to meet such averments as are made in the petition, it seems his own fault if proceedings thereafter passed in absence.

It seems to be true that the interference of the defender was regrettable, for it certainly did no good. Neither, however, is it said to have done any material harm; at least the interlocutors are not challenged on any ground of that kind. It is not averred or proved that the pursuer's property was sold at a sacrifice, or that the expenses of process were excessive. I do not express' any opinion whether relief might not have been given had either of these things been averred and proved, but as they are not in the case, and as, in my opinion, the technical objections are untenable, I have come—not without difficulty—to the conclusion that the pursuer's action fails, and that the defender is entitled to absolvitor.”

The pursuer reclaimed, and argued—(1) This action of reduction was competent— M'Lachlan v. Rutherford, June 10, 1854, 16 D. 937. It was a preliminary and necessary step to an action of damages. (2) The interlocutor of 3rd September should be reduced, because pronounced before the induciæ had expired. The question was not whether the service copy of the petition or the execution was to bear faith. The fact remained that the only writ left for him, viz., the service copy of the petition, was dated 1st September. He had forty-eight hours to enter appearance, and accordingly no interlocutor pronounced on 3rd September could stand. A defender was entitled to found on the date of the service copy— Dunlop v. Nicolson, July 10, 1827, 5 S. 915; Mackenzie v. Munro, November 10, 1894, 22 R. 45. (3) The defender had sought a remedy to which he was not entitled. His proceedings were equivalent to sequestration in security of rent, which would have been incompetent. His highest right was to have the status quo maintained— Drysdale v. Lawson, March 11, 1842, 5 D. 1061. In the circumstances he had no right whatever to interfere. His tenant was not due any rent, and had a good cautioner. If he disapproved of the displenishing he should have applied for a plenishing order, but the tenant was entitled in the circumstances to displenish if he chose. He had made arrangements for harvesting, and was surely free to go abroad for a month without incurring the risk of having all his goods sold off. (4) It was ultra vires of the Sheriff to grant the prayer of the petition without inquiry. The petition asked for far larger powers than in Brock's case, and there the powers were only given after inquiry. The powers here conferred

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were more like those of a factor loco absentis, who could not be appointed by the Sheriff— Brock v. Buchanan, June 7, 1851, 13 D. 1069.

Argued for the respondent—(1) The action was irrelevant, because the pursuer could gain nothing by it. He had deliberately elected to wait till he could get nothing—he did not claim damages, although he says he will subsequently raise an action of damages—and he now asks the Court for what was impossible, to recal an appointment and management which was at an end. (2) The citation was good. No reduction of the execution was sought, and a defect in the service copy, if there were a defect, did not invalidate the citation. Dunlop's case had been recognised as special, and was not followed in the subsequent case of Macqueen v. Clyne's Trustees, May 20, 1834, 12 S. 610. (3) He was entitled to the remedy he had asked if the circumstances warranted the application— Brock's case ( supra) and Affleck v. Affleck, January 14, 1802, 24 D. 291. All the circumstances pointed to the farm having been deserted, and if it was not so in fact, the pursuer had himself to blame for that impression in the mind of his landlord from the way he had acted, having failed to give any account of his whereabouts, and not having left a proper person in charge who could have attended to answering the petition.