Scottish Court of Session Decisions

The pursuers in this case, Messrs Nelmes & Company, billiard table manufacturers in Glasgow, in November 1881 let on hire to Thomas Moore, auctioneer, three billiard tables and appurtenances at a weekly rent of thirty shillings. The tables were placed by Moore in certain premises of which he was proprietor, and which he had let as a billiard saloon to two tenants on a five and a-half years' lease. On 22d February 1882 Moore was sequestrated, but his trustee did not enter into possession of the premises nor adopt the lease. On 17th March following, Miss Gillies, who was a heritable creditor of Moore, holding a bond and disposition in security over property belonging to him of which the billiard-room formed part, the interest on which bond was then several terms in arrear, executed a poinding of the ground in virtue of decree obtained by her in an action in the Sheriff Court of Lanarkshire. In the schedule of poinding the billiard tables were included. She had also raised an action of maills and duties, calling inter alios the tenants of the premises, in which on 20th March she obtained decree in absence, ordaining the tenant of the billiard—room to pay to her the rent of £3 a-week due to Moore under the lease. The pursuers of lastmentioned date raised an action to interdict her from selling, removing, or in any way interfering with the billiard tables, on the ground that they belonged to them and not to Moore. In this process they obtained decree on 28th May. In consequence of the fact that Moore's proprietorship of the billiard tables was denied, and of her belief that the tenants had made certain disbursements which they were entitled to set against the rent, Miss Gillies did not uplift any rent from the tenants under her decree of maills and duties, and on 12th June her law agents intimated to the pursuers that they might, if they thought fit, remove their tables.

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The pursuers brought this action against Miss Gillies for £25, 10s., as the rent of the tables for seventeen weeks, at £1,10s. per week, the rentat which they had let them to Moore. They averred that the defender, in virtue of the decree in her favour in the action of maills and duties, had entered upon possession of the premises and uplifted and intromitted with the rents, including the said sum of thirty shillings a-week. They also averred that by the defenders' illegal use of the poinding they had suffered loss and damage to the amount sued for.

They pleaded—“(1) The defender having entered into possession of Moore's property, and uplifted or intromitted with the rents thereof, including the amount of hire payable by the tenant under the lease for the effects belonging to the pursuers, decree as craved ought to be granted. (2) The defender having, by the use of an illegal poinding, prevented the pursuers from removing or making other arrangements as to the effects hired from them, the pursuers are entitled to decree against her for the hire payable to them from 13th February to 12th June 1882, being the sum concluded for; or otherwise (3) The pursuers having suffered loss and damage through the illegal use of poinding by the defender, she is liable in reparation therefor, and the sum sued for being fair and reasonable, decree as craved ought to be granted therefor.”

The defender denied having uplifted any rents under the decree of maills and duties. She averred that the billiard tables were erroneously included in the schedule of the poinding, she being bona fide in the belief that they were the property of Moore, and that the pursuers had not during the whole proceedings made any attempt to remove the tables, which were in the possession and custody of the tenants, or applied to her for permission to do so, until they learned that the remaining tenant had thrown up his lease, which he did in June 1882, nor intimated to her that they were suffering any damage.

She pleaded, inter alia,” The action is irrelevant.”

The Sheriff-Substitute ( Lees) found the action irrelevant and dismissed it.

“ Note.—The defender is a heritable creditor of Thomas Moore, auctioneer in Glasgow, whose estates were sequestrated on 22d February last. Moore had hired from the pursuers three billiard tables and relative appurtenances in November 1881, and sublet the premises in which he carried on his business, together with the tables, to a man Hardie for the period of 5 1 2years. In March the defender executed a poinding of the ground, and it being thought that the tables were the property of Moore they were scheduled in the poinding. The defender also in that month obtained a decree of maills and duties, under which it is said she recovered from Hardie the rent payable by him for the rooms and tables to Moore. In the end of June it was settled by decision of Court that the tables had not been bought by Moore, but were the property of the pursuers, and only lent to him on hire. They now claim from the defender the hire which Moore owes them for the tables during the time they were tied up by the poinding, and alternatively that amount is asked as the amount of damages which the pursuers have suffered. Now, Hardie's rent was due to Moore, and not to the pursuers. Therefore, so far as the question is one of rent, it is obvious that the pursuers have no ground of action against the defender arising from the enforced payment of the sub-rent to her under the decree of maills and duties. That was a perfectly competent step for the defender to take. Then as regards damages for having poinded the pursuers' tables, though it was decided that the tables were not owned by Moore, it is not surprising that the defender thought so, and there is no relevant allegation in the condescendence that the defender in acting on this belief caused loss to the pursuers. If Moore had paid the hire to them they would have had no ground of complaint, and yet the defender would not be in the wrong. It is the default of Moore that causes the difficulty. Now the tables were hired to him, and sublet by him to Hardie for 5 1 2years. There is thus nothing in the case to show that the tables were detained from the pursuers by the act of the defender beyond the period for which they were let on hire, and still further there is no allegation that the pursuers applied to the defender for permission to remove the tables and were refused. In fact, for all that appears the tables may be in the premises to this day. In this way there is nothing condescended on which if proved would show that the defender had caused loss to the pursuers.”

The pursuers appealed to the Sheriff, who for the reasons assigned by the Sheriff-Substitute adhered.

They then appealed to the Court of Session, and argued—The tables not having been the property of the defender's debtor, her poinding could lay no nexus upon them; for the creditor by mere attachment of the debtor's estate could take no higher right than the debtor himself had — Fleeming v. Howden, July 16, 1868, 6 Macph. (H.L.) 113. The inclusion of the tables in the poinding was unwarranted, for the circumstances were sufficient to warn the defender that she was proceeding at her own risk. It was therefore unnecessary to make any specific averment of loss. The Sheriff-Substitute had confounded relevancy of averment with measure of damages— Meikle v. Sneddon, March 5, 1862, 24 D. 720; Wilson v. Blackie, October 22, 1875, 3 R. 18. The question was, whether the diligence here being a real diligence made any difference, for there was no doubt that had the action been an ordinary one that the pursuers would have had a relevant ground of action; Ersk. iv. 1, 13; Thomson v. Scoular, January 18, 1881, 9 R. 430. A duty lay on the poinding creditor to find what on the ground of the debtor was or was not poindable. There was no general presumption that all moveables found there were the property of the debtor— Stead v. Cox, January 20, 1835, 13 S. 280; Duncanson v. Jefferies' Trustees, March 4, 1881, 8 R. 563. Though there might be some such presumption as to household furniture, there was none as to billiard tables, which were machinery of trade— Robinson v. North British Railway Company, March 10, 1864, 2 Macph. 841; Miller v. Hunter, March 23, 1865, 3 Macph. 740. The action was therefore relevant.

The defender replied—The action of maills and duties could not transfer the property.

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Moore as against Nelmes & Company could not have pleaded the decree in that action as a discharge. The pursuers had taken their remedy, and should not have had their interdict Their proper procedure was to have appeared at the application for warrant to poind, and have had the tables removed from the schedule. It had been so held in the analogous case of a landlord's sequestration. The principle of the diligence of poinding was that the creditor was entitled to sweep everything he found on the ground into his net, subject only to the right of a third party to vindicate any articles belonging to him.

Authorities— Lady Ednam v. Lord Ednam, 1628, M. 10,545; Collect Marquis of Balmerinoch, 1679, M. 10,550; Lindsay v. Earl of Wemyss, May 18, 1872, 10 Macph. 708; 1469, c. 36.

Counsel for the defender was not called on.

At advising—