United Kingdom House of Lords Decisions

This judgment was adhered to by the Sheriff-depute, who gave this opinion in reference to an objection stated to the competency of the action:—

“In the case, 2d of June 1812, Forbes v. Duncan, it was found, that an irritancy on a tenant's bankruptcy might be declared in the ordinary form of a removing before the Sheriff, without any previous action of declarator. In that of 7th of December 1805, Gordon v. Copland, there referred to, it was further found, that such an irritancy was not purgeable by the supervening solvency of the tenant before decree of removing was pronounced; and the same principle was recognized in the case of 16th of June 1812, Kinloch v. Macomie. Here, besides the general ground of bankruptcy, there is a farther irritancy declared on the incurring three quarters of a year's arrear; and it seems pretty clearly established that more than this is incurred. All the length which the present interlocutor goes, is to ordain the arrear to be paid up, on failure whereof the irritancy must be declared, and decree of removing pronounced. Even were this arrear paid up, it may be a farther question, whether an irritancy has been incurred on the ground of bankruptcy or otherwise; though it may be doubted whether the conveyance to trustees, and renunciation by them, would be sufficient per se to vacate the lease, supposing the tenant could now prove his solvency. As to the question of possession, that falls more properly under the process of interdict remitted hereto. But it appears that the trustees renounced possession on the 14th of May. The whole stock and machinery were sold under the authority of the Court, and bought by the landlord. Nobody appears to have taken possession for the tenant, (his letter threatening to resume possession not being dated till 11th of

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July, near two months thereafter). In all these circumstances, the landlord might fairly presume desertion by the tenant, and take possession himself; and this possession, it is thought, cannot be interrupted till the tenant shews his title to resume the lease. As to the tenant's argument on the Act of Sederunt 1756, it seems to make against himself; for the case of 15th of December 1767, Wauchope v. Hope, only shews, that in collieries the landlord is dispensed from the regular forms of removing, under the Act, and may obtain decreet against the tenant on any reasonable grounds; and to the same purpose, Erskine, b. ii. t. 6. § 49.”

Against these judgments Taylor presented a bill of advocation, which Lord Cringletie refused, for the reasons explained in the following note:—

“The Lord Ordinary having advised this bill with the process,—and although he thinks that the bankruptcy alluded to in both the leases granted to the complainer by Colonel Boyle, was a real bona fide insolvency of the tenant, although he might not be a notour bankrupt in terms of the statutory law; as for instance, that the tenant should be forced to grant a disposition omnium bonorum to trustees, for behoof of the creditors, whereby he would become quite unable to perform his part of the lease, as happened to the complainer; yet the Lord Ordinary does not think it necessary to take bankruptcy into view, as a substantive ground of removing in this case. There were two leases granted to the complainer, the latest of which in date is that of the engine and railway, and in it the rent is L.190; and in the tack there is a clause declaring, that if the said William Taylor shall at any time allow three quarters' rent to remain in arrear unpaid, then this tack shall be irritated and forfeited, and it shall be in the power of the said Colonel John Boyle to remove the said William Taylor from the possession.

It is then declared, “that a removing from the subject let by the one tack shall imply a decree of removing from the other, so that if the said William Taylor, by allowing his rent to run in arrear, shall forfeit this tack, and be removed from the engine and railway, then he also obliges himself and his foresaids at the same time to remove from the coalwork.”

From these clauses it is as clear as any proposition can be, that it does not require Mr Taylor to be three quarters of a year in arrear of rent for both the coal and engine before Colonel Boyle is entitled to remove him. But, on the contrary, that if Mr Taylor were in arrear for rent of three terms for the engine alone, he might be removed from both the subjects.

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Mr Taylor became insolvent, and conveyed his leases to trustees, whose management the Colonel permitted, and they gave him notice that they were to abandon, and did actually abandon the subjects at Whitsunday last 1818; and it is not disputed that Colonel Boyle did then assume possession, in which he continued quietly till 7th of July following. At that term the rents had been unpaid, and an arrear was due, as Colonel Boyle says, of L.568. 16s. 9d., which is more than a year's rent of both the subjects, and even according to Mr Taylor's own statement, there was an arrear of L.344, which is nearly two years' rent of the engine and railway. Had then Mr Taylor been in possession at Whitsunday 1818, Colonel Boyle could have brought a removing against him before the Sheriff from both the subjects, because he owed much more than three terms' rent of the engine, and a removing from that inferred also a removing from, the coal. But Mr Taylor was not in possession, for it had been ceded by the trustees, who were in the lawful possession, and it was assumed by the Colonel, who therefore was not obliged to raise the removing in order to obtain possession, which otherwise would have been necessary. When, however, Mr Taylor began to be serious in attempting to reassume possession, the Colonel raised his action before the Sheriff, which, proceeding on the authority of 2d of June 1812, Forbes v. Duncan, by which it was found in this Court that a conventional irritancy in a lease might be enforced without a declarator of irritancy; the summons concludes, that the pursuer, Colonel Boyle, being in possession, and the leases irritated, so, in the event of their (viz. Mr Taylor or his trustees) interfering, they ought to be summarily ejected therefrom, and decerned and ordained by decree foresaid instantly to flit and remove themselves, their families, &c. The declaratory part of the summons is only with the view of introducing the conclusion for the removing, which could not well have been libelled without it, and in terms of the case of Forbes is competent before the Sheriff.

It is admitted, that the Sheriff has not rested his judgment on the circumstance alone of the complainer's insolvency, but, on the whole case, he has placed it on the ground of the complainer's being in arrear of more than three terms' rent; and it is quite enough to support that judgment if the complainer be in arrear only for the engine, which cannot be disputed. But the Lord Ordinary believes that the arrear extends to greatly more; because, by a docqueted account, the trustees have confessed

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an arrear at Whitsanday 1818, of no less than L.568. 16s. 9d. Viewing the case then as an irritancy, the Sheriff has considered it to be purgeable, and allowed it to be purged, so that his interlocutor appears to be perfectly well founded; and in these circumstances it is impossible for the Lord Ordinary to listen for a moment to the prayer of this bill, which prays him to pass it without caution. As to the Act of Sederunt 1756, the Sheriff has not proceeded on it at all; for if he had, he would have ordained the complainer to find caution for the arrears, and five subsequent crops, which he has not done. He has proceeded on the conventional irritancy, and considered the insolvency and dereliction of possession merely as circumstances.”

To this judgment the Second Division adhered on the 11th of February 1819. ^*

The case then returned to the Sheriff Court; and the estates of Taylor having been in the meanwhile sequestrated under the Bankrupt Act, and Kerr appointed trustee, Colonel Boyle called him as a party by a supplementary summons. The arrears not having been paid up, the Sheriff decerned in terms of the libel; and the decree having been extracted, Taylor presented a bill of suspension, which Lord Meadowbank refused, and the Court adhered on the 13th November 1819. ^* Against these judgments in the suspension (but not those in the advocation) Taylor entered an appeal, on the ground chiefly,—

1. That it was not competent for the Sheriff to declare the lease forfeited, but that this could be done by the Court of Session only. And,

2. That the summons did not libel on the conventional irritancy which formed the ground of judgment, and therefore that the judgment was inept.

To this it was answered,—

1. That the competency of the Sheriff to enforce a conventional irritancy in a lease, had been repeatedly decided in the affirmative, and that it had been so in this case by the judgments in the advocation, which were not appealed against. And,

2. That the leases had been libelled on, and an arrear averred and condescended on; and as an ample opportunity had been given to pay it up, and this had hot been done, the Sheriff was bound to enforce the irritancy.