Stewart v Watson
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1864 |
| Date | 20 July 1864 |
| Docket Number | No. 250 |
| Court | Court of Session (Inner House - Second Division) |
Bill-Chamber. Ld. Barcaple. I.
Lease—Irritancy—Removing—Sequestration.—
BY lease entered into between the respondent Watson, heritable proprietor of the farm and lands of Fetters, and the complainer, it was, inter alia, declared, that in the event of the complainer allowing the rent contracted for to run into arrear, he should suffer a sequestration at the respondent's instance to be applied for and awarded against him, then the said lease should, in the option of the respondent, become eo ipso null and void, without the necessity of any declarator or action for that purpose, and that the complainer should be obliged to renounce said lease, and remove from the lands.
The half year's rent due at Michaelmas 1863, being the balance of rent for crop and year 1862, was allowed to fall into arrear; and on the application of the respondent sequestration was awarded, on 3d October 1863, for the rent past due and then current. On 23d November 1863 the respondent —the sequestration still subsisting—raised an action of removing against the complainer, founding upon the irritancy above narrated, and setting forth that the complainer was then due a part of the rent for crop and year 1862. In that action the Sheriff-substitute (Taylor) pronounced an interlocutor, finding ‘that the event which was agreed as aforesaid to form a ground of irritancy of the said lease has occurred, and that the lease has in consequence become null and void; but in respect no time for the defender's consequent removal is specified in the lease, and that his instant removal between terms is not stipulated, and is not necessarily to be presumed, while it is a fair and reasonable presumption that his removal was understood to be enforceable at a legal term, Finds and fixes the term of Whitsunday 1864, being the next legal term after the irritancy was incurred, as the date at which the defender shall be bound to remove from said farm; Therefore decerns against the defender in the removing accordingly in terms of the libel, superseding execution till Whitsunday next: Finds the defender liable in expenses.’∗
On appeal, the Sheriff (Mackenzie) adhered.∗
The complainer then brought this suspension, in which he averred;—The
said action was wholly incompetent in the Sheriff-court, and outwith the jurisdiction of the Sheriff. It was a declarator of irritancy of a formal lease. It was not founded on nor warranted by the Act of Sederunt of 14th December 1756, or the Sheriff-court Act 1853. It was not supported upon any special contract to remove, nor was it alleged that the complainer was not able or had neglected to cultivate, crop, or manage the said farm. At the first meeting before the Sheriff, the complainer pleaded that the said action was incompetent, and outwith the jurisdiction of the Sheriff. The complainer thereafter found caution for violent profits, and lodged defences, denying the averments of the respondent in reference to the balance of rent and others alleged to be due, and averring that he was not due the respondent any rent or statute-labour at the date of raising the said action. The respondent accepted an order upon a debtor of the complainer for the second half year's rent of crop and year 1862, amounting to L.40, which fell due at Michaelmas, or 29th September 1863, and the statute-labour applicable to said rent, amounting to L.1, 4s. The first half year's rent for crop and year 1863, amounting to L.40, which fell due at Whitsunday 1863, was paid by the complainer, and discharged by the respondent's agents on 2d June 1863. The sum specified in the state produced by the respondent in said action was not due. The petition of sequestration was not called for or competent, and was presented without previous notice, at least without such previous notice as a tenant in the circumstances was reasonably entitled to receive, and any deliverance obtained was in absence. There was no ‘arrear of the rent thereby contracted,’ according to the true import of the lease at the date of the application. The half year's rent of crop 1862, due at Whitsunday 1863, was paid in full, and the other half of that rent only fell due on 29th September, and the petition for sequestration was presented on 3d October, only four days thereafter. The order above mentioned was accepted by the respondent, and thereupon it was expressly agreed on the part of the respondent that the sequestration was to drop. That party so indebted had a crop of potatoes on the farm which was sufficient to meet the amount in the order, and which potatoes the respondent uplifted. A portion of said debt for which the order was granted (L.27, 16s.) was for rent of the potato land. The complainer paid the half year's rent which fell due at Michaelmas 1863, and the statute-labour money applicable to that rent, and also that applicable to rent crop 1863 (not due and payable), on 24th November 1863, the day after execution of the said action, and the receipt therefor by the respondent's agents was produced with the defences. The sequestration, even if competently and rightly applied for, fell, and the reservation in the receipt applied to the rent crop of 1863, which was not only not in arrear, but was not due. The complainer had entered on another year of the lease at Martinmas 1863, before the summons was executed, and cropped a portion of his farm for the then current year. There was no allegation in the petition of sequestration, and there was none in the said action, that the complainer was dilapidating or displenishing his farm, and not able to labour, crop, and manage it for the current year, and during the lease. Under the circumstances the respondent was bound to make a demand for the said half year's rent, or to give formal notice to the complainer before applying for sequestration. The respondent, however, was aware that...To continue reading
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