Scottish Court of Session Decisions

The complainer James Taylor was for some time prior to Martinmas 1880 tenant of the farm of Dalraith, in the county of Ayr. He presented a note of suspension and interdict in the Court of Session against Mrs Helen Macknight and others, the accepting and acting trustees of the deceased Mr Macknight, Writer to the Signet in Edinburgh, to suspend proceedings which were being brought at their instance against him. It was stated on record that on the 17th October 1881 warrant had been granted in the Sheriff Court of Ayrshire at Kilmarnock to sequestrate the whole stock on the said farm of Dalraith, and that a sheriff-officer had proceeded to the lands and had served upon the complainer an inventory of the crop alleged to have been sequestrated by him, as if by virtue of the said petition and warrant. It appeared that on the following day, the 19th of October, it was pointed out to the officer that crop had been sequestrated, whereas the warrant only authorised the sequestration of stock, who thereupon intimated to the complainer that the inventory served upon him the previous day was withdrawn and departed from. The officer thereafter, and without revisiting the lands, and from information supplied to him by the complainer, who happened to be present, proceeded to make out an inventory of stock, which he substituted for the one he had previously withdrawn. The complainer thereupon presented this note of suspension and interdict, craving the Court to prohibit the respondents from selling the crop or removing the stock upon the said farm, and pleading that both sequestrations were invalid.

The Lord Ordinary on 18th March repelled the reasons of suspension on the grounds stated in the following section of his Lordship's note:—“The suspension was supported on two grounds—(1st) That the respondents have lost their right of hypothec by reason of their having sold the lands; and (2dly) that if the right of hypothec still subsisted, the sequestration was invalidated by irregularities in the execution of the warrant to sequestrate.

The lands were sold, with entry as at Martinmas 1880 and Whitsunday 1881. But it is not disputed that the second half of the rent for crop and year 1880 was payable to the respondents at Lammas 1881; and it is settled law that the hypothec over crop and cattle subsists for three months after the lapse of the last conventional term in each year. The petition for sequestration was presented on the 17th October, within the three months; and it is not disputed that at that time, if there had been no change of ownership, the stock and cattle would still have been subject to hypothec for the rent payable at the previous Lammas. It was not, as I understand the argument, maintained that when a property is sold, the right of hypothec for rents still current, but which are not assigned to the purchaser, but are payable upon the arrival of the term to the seller, is immediately extinguished by force of the change of ownership. But it is said that the right expires three months after the purchaser's entry, notwithstanding that the term of payment may not yet have arrived. No authority was cited for this distinction, and there is no reason for it. If the stock is hypothecated for rents which do not become payable until after the change of ownership, the hypothec must subsist, at least until the term of payment. It is a different question whether, after the entry of a purchaser, the practice which allows the hypothec to be enforced within three months after the term of payment

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is still available to the landlord who has sold. But the point is in substance decided in the case of Christie v. M'Pherson, Dec. 14, 1814, F.C.; and following that decision, I am of opinion that the respondents were still entitled to enforce their hypothec over the stock at the date when they applied for sequestration.

“The second objection is of a different kind. On the 18th October the sheriff-officer served upon the complainer an inventory of the crop, and it is conceded that he did so without warrant, the respondents having neither asked nor obtained sequestration of the crop, but only of the stock of cattle. On the 19th, the error having been pointed out to him, he intimated to the complainer that the inventory was withdrawn, and substituted for it a correct inventory of the stock. It was maintained, in the first place, that this proceeding was illegal, and that the sequestration is invalid, because the warrant was exhausted and the sheriff-officer functus officio by his delivery of the first inventory. But so far from being exhausted, it appears to me the warrant had not been put in force to any effect whatever. The inventory of crop was a mere nullity, and the warrant to inventory and secure the stock still remained perfectly effectual, nothing having been done to put it into execution.”

The complainer reclaimed, and argued in support of the second objection—The whole proceedings in the sequestration were grossly irregular and therefore invalid. The officer sequestrated crops, whereas he was only entitled to sequestrate stock. The substituted inventory was bad, because the officer omitted to revisit the lands, and made up his inventory from information supplied by the tenant. No argument was offered in support of the first ground urged in the Outer House.

Authorities— Horsburgh v. Morton, February 26, 1825, 3 S. 409; Bell's Com., vol. ii., p. 33.

Counsel for the respondents were not called on.

At advising—