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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Steuart v. Ledingham and Others [1878] ScotLR 15_689 (9 July 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0689.html Cite as: [1878] SLR 15_689, [1878] ScotLR 15_689 |
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Page: 689↓
[Sheriff of Banffshire.
Where a landlord, in the exercise of his right of hypothec under the Act 30 and 31 Vict. c. 42, had sequestrated cattle belonging to a sub-tenant, who had taken a grass park on lease from the tenant, held that the subtenant was not entitled to demand from the landlord an assignation of his right of hypothec upon consigning the amount of the rent unless he could show that such assignation would not operate any prejudice to the landlord.
This was a petition brought in the Sheriff Court of Banffshire in August 1873 by Mr Steuart of Auchlunkart, praying for sequestration of the bestial and horses belonging to Alexander Ledingham, his tenant in the farm of Netherton, and others, to whom Ledingham had granted a sublease of the grazing on his farm, in security of the sum of £63, 4s. 5d., being the half-yearly rent of the farm due at Martinmas following. The petition set forth section 5 of the Hypothec Amendment (Scotland) Act 1867, which was as follows:—“In the event of the tenant or lessee of any farm or lands having received, and taken thereon to be grazed or fed, any sheep, cattle, or other live stock belonging to any other person, and having agreed with the owner of the same for a bona fide payment equal to the just value of such grazing or feeding, such sheep, cattle, or other stock shall be liable to the hypothec of the landlord, lessor, or person entitled to the rent of the farm or lands to the extent of the amount of such payment, and no further: Provided always that so long as any portion of such sheep, cattle, or other live stock shall remain on the farm or lands, the hypothec over such portion shall continue to the full extent of the payment originally agreed upon for the grazing or feeding of the whole of such sheep, cattle, or other live stock, and that in the event of the removal of the sheep, cattle, or other live stock, or any portion thereof, from the farm or lands, the right of hypothec shall, so long as the payment or any part thereof shall remain unpaid, continue to apply to such sheep, cattle, or other live stock to the extent of the amount of the payment or such part thereof as shall be unpaid.” It was further averred that Ledingham was to some extent in arrear of his previous year's rent. The cattle were sequestrated, but the sequestration was afterwards withdrawn from some of the animals, and the sub-tenants, under an arrangement, eventually consigned in Court the amount of their rents.
It appeared that when they took the parks the sub-tenants had, according to practice in such cases, granted bills for the rents respectively payable by them to the tenant, and one of their pleas, which was given effect to by Sheriff-Substitute ( Gobdon) and Sheriff ( Bell), was as follows:—“The respondents being entitled to the benefit of the petitioner's hypothec as the correlative of paying the rent, the petitioner is only entitled to the said sums on assigning to them said right, or otherwise securing them therein, in terms of the arrangement by the parties.” It is unnecessary to refer to the nature of these arrangements.
The petitioner appealed, and argued that he could not be compelled to assign his hypothec unless it could be shown that such an assignation would not prejudice his interests. Now, there was due to him not merely the half-year's rent which was payable at Martinmas, but the tenant was in arrear, and he was entitled besides to exercise his right for the ensuing half-year's, due at Whitsunday— Graham v. Gordon, March 9, 1842, 4 D. 903.
The respondents argued that on the broad principle that a surety paying for a debtor was entitled to an assignation of the creditor's right, they were entitled here to an assignation'—Bell's Comm. ii. 523 (M'Laren's ed. 417).
At advising—
The Sheriff-Substitute and the Sheriff occupied fifteen months in preparing a record, and five years in deciding the case. They have now decided that the landlord is bound to grant an assignation.
If the case were a pure one under the Act of Parliament, and if it could be shown by the subtenants that the landlord would suffer no prejudice
Page: 690↓
But I rather think it is unnecessary to decide this question, because the landlord has shown that he would be prejudiced. His hypothec was available for the rent of 1873, the second half of which was not payable till Whitsunday 1874, and he would have had an opportunity of sequestrating the principal tenant's stock over again for the second half-year. And that is a sufficient answer, because no right can be granted in equity which is not entirely Without prejudice to the person granting it. I am therefore for recalling the Sheriff's interlocutor.
The Court pronounced the following interlocutor:—
“Recal the interlocutor of the Sheriff-Substitute of 27th February 1875, and all the subsequent interlocutors: Grant warrant to the appellant to uplift the consigned money mentioned in the interlocutor of the Sheriff-Substitute of 2d September 1873, without granting any assignation of the sequestration or of his right of hypothec: Quoad ultra dismiss the sequestration, and decern: Find the appellant entitled to expenses both in the Inferior Court and in this Court; Allow accounts thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”
Counsel for the Petitioner (Appellant)— R. V. Campbell. Agent— George Andrew, S.S.C.
Counsel for Respondent— Asher— Moncreiff. Agent— A. Morison, S.S.C.
