Scottish Court of Session Decisions

On 19th November 1907 Thomas Hyslop Gilmour, grocer and wine merchant, 24 Cadzow Street, Hamilton, raised an action against William Godfrey Craig, hotelkeeper, County Hotel, Hamilton, his landlord, to recover £500 as damages for wrongful use of diligence, he having sequestrated for rent.

The pursuer pleaded, inter alia—“(1) The defender having wrongfully and oppressively sequestrated the effects of the pursuer, is liable in reparation.”

The defender pleaded, inter alia—“Payment of rent having been refused by the pursuer, and the same having been past due before sequestration was executed, the defender is not liable in reparation.”

The facts as averred are given in the opinion, infra, of the Lord Ordinary ( Salvesen), who on 15th January 1908 approved an issue in the ordinary form.

Opinion—“This is an action of damages for alleged wrongful sequestration. The material facts as averred by the pursuer are, that on 11th November 1907, when a half year's rent of £20 was due by him to the defender, he sent his foreman to the defender about 2·30 with a cheque on the Clydesdale Bank, Hamilton, for £20, which the defender declined to accept; that at 3·15 p.m. his agent again sent the cheque to the defender along with the letter quoted in condescendence 4 ( v. infra), and that the defender, while the cheque was still in his possession, caused to be prepared and presented a summons for sequestration for rent under the Debts Recovery Act 1867 on which he obtained the usual warrant to inventory and sequestrate the pursuer's goods in his premises, and that this warrant was executed at 4·10 p.m. About 4·40 p.m. the defender called on the pursuer's law agent with the letter before referred to and said the cheque was of no use to him, and on being asked to cash the cheque and withdraw

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the summons he declined to do so or to receive the £20 due in cash except on the condition of the pursuer paying the expenses of the summons of sequestration. The cheque itself was only returned on the following day by the defender's law agents.

“The main ground of action is that the pursuer was not in arrear of his rent until the expiry of the 11th of November, and that accordingly the warrant for sequestration, obtained on the representation that he had refused or delayed to pay the rent due on that day, was wrongful. The defender on the other hand maintained that the rent ought at all events to have been paid by 12 noon on the 11th November, and that on the pursuer's failure to pay by that hour the defender was within his rights in causing the diligence in question to be executed.

The defender's counsel did not quote any direct authority to the effect that a tenant who delays to pay his rent after 12 noon on the term day is in arrear. He supported his proposition, however, by two arguments which at all events reflect credit on his ingenuity. In the first place he founded on the Removal Terms (Scotland) Act of 1886, section 4, which enacts that ‘where the term for a tenant's entry to or removal from a house shall be one or other of the terms of Whitsunday or Martinmas the tenant shall in the absence of express stipulation to the contrary enter to or remove from the said house at noon on the 28th day of May if the term be Whitsunday or at noon on the 28th day of November if the term be Martinmas.’ The bearing of this enactment on the question here raised is not obvious; but the defender's counsel maintained that as the legal and conventional terms are theoretically the same, it must now be held that payment of the rent must be made by 12 noon on the 11th of November just as the tenant is bound to remove by 12 noon on the 28th when his lease expires at Martinmas. I confess that I do not see why any such consequence should follow. The Removal Terms Act 1886 proceeded on the assumption that the legal and conventional terms were not the same and left the term for payment of rent entirely unaffected. If therefore before the enactment was passed the tenant had the whole of the legal term day on which to make payment I see no reason to infer that this enactment, which was entirely for the convenience of tenants inter se, should alter the relation of the tenant to his landlord.

The second argument was based on a series of decisions dealing with a chapter of the common law which in consequence of the Apportionment Act has now become of only antiquarian interest. In the case of Lady Brunton, M. 15,885, it was held that the executors of a liferentrix who had survived to the afternoon of the term of Martinmas were entitled to the rents of heritage due on that date in preference to the heir; and in the later case of Paterson v. Smith, M. 15,902, a similar decision was pronounced in the case of a liferentrix who had died on the forenoon of Martinmas day. Both of these decisions proceeded on the maxim dies inceptus habetur pro completo; and they were used by the defender to show that rent payable at Martinmas becomes due immediately after midnight of the 10th of November, or at all events by custom at noon on the 11th. These decisions are, however, in no way inconsistent with the notion that a tenant has the whole of the term day in which to make payment, as seems to have been expressly held in England in the case of Dibble, 2 El. & Bl. 564. They are also consistent with the old case of Wright, M. 15,919, to which I was referred by the pursuer's counsel, in which it was held that the days Whitsunday and Martinmas respectively conclude and are comprehended in the proceding terms and are not the first days of a new period.

I am accordingly prepared to hold that payment of rent is just like any other payment falling to be made on a specified day, and as to which the debtor is not in default if payment be made at any time during the day; although on the other hand the debt is due in the sense of being demandable by the creditor when the day arrives. This view involves that the defender was premature in obtaining, or at all events in executing, a warrant to sequestrate the pursuer's effects, and that the execution of that warrant was wrongful. It follows that as such a warrant is obtained periculo petentis the defender is liable in any damages thereby caused, and that the pursuer is entitled to the issue which he proposes.”

The letter referred to by his Lordship was—“Hamilton, 11th November 1907.

Mr W. G. Craig, County Hotel.

Dear Sir,—Our client, Mr Thomas H. Gilmour, has instructed us to send you the enclosed cheque for £20 in settlement of the half-year's rent due at this term. Please send us receipt.

We are to explain that the same is made under reservation of Mr Gilmour's claims against you for (1) fee as witness on your behalf at the Lands Valuation Court. He claims £1, 1s., and application for payment was made to your agents, but they have taken no notice; and (2) price of goods damaged by water from the roof of the saloon, of which you had due notice, and have failed to attend to the repair. We will send detailed claim within the next few days.—Yours truly,

Keith & Patrick.”

The defender reclaimed, and argued—Rent became overdue either by non-payment on the term day or by refusal to pay on that day. The offer of a cheque, which was not legal tender, and the repetition of that offer when the defender had once refused the cheque, was equivalent to a refusal, and justified the defender in using diligence. (The point as to time taken in the Outer House was not argued in the Inner House.)

Counsel for the pursuer were not called upon.

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