Scottish Court of Session Decisions

James Andrews was tenant of a flat which he used as a dwelling-house at No. 7 North St David Street, Edinburgh, and of which the proprietor was Henry Montgomerie Bell, residing at Oundle, from Whitsunday 1879 to Whitsunday 1884, at a yearly rent of £48. At the last mentioned term Andrews left the house, taking with him his household furniture and other effects to another house at 4 Marchmont Street. He left unpaid a balance of rent of £33.

Thereafter Henry Montgomerie Bell and his mandatory John Montgomerie Bell, Writer to the Signet, presented a petition to the Sheriff of the Lothians against Andrews for sequestration of the whole furniture, goods, gear, and other effects which were or might have been within the dwelling-house at No. 7 North St David Street, and for warrant to carry them back to said dwelling-house or other place of safe custody, and for warrant to sell so much of the sequestrated effects as would satisfy the unpaid balance of rent of £33.

Having obtained a warrant accordingly, the pursuer instructed a Sheriff-officer to proceed to the defender's house at 4 Marchmont Street for the purpose of removing his furniture, which was accordingly done by the officer. The furniture removed was placed in the premises of an auctioneer. Among the effects so sequestrated and removed was a pianoforte.

Andrews lodged answers to the petition for sequestration. In these he averred that John

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Montgomerie Bell had agreed to his (the defender's) removing the furniture from the house in North St David Street to that in Marchmont Street, and had undertaken that it should not be removed from the house to which he had taken it so long as nothing was done to endanger the pursuer's right of hypothec, and that the removal thereof by the Sheriff-officer under his instructions was a violation of that agreement, and therefore illegal.

A minute having been lodged for Jessie Williamina Strachan Andrews, the defender's daughter, a minor, stating that the piano removed by the Sheriff-officer belonged to her, the Sheriff-Substitute ( Baxter) appointed her to lodge a claim for the piano, which she did. She claimed to have the piano withdrawn from the sequestration and restored to her by being brought back to the house at Marchmont Street. She averred that the piano was her exclusive property; that she had received it in the beginning of 1883 as a joint-present from her paternal grandmother and another lady; that it did not belong to her father, and was not subject to the pursuer's hypothec; that it was deposited in her father's house as her own absolute property, and for her sole use and benefit; and that, having in view the proper use of it by her, it could not have been placed or deposited anywhere else.

The pursuer pleaded—“(4) The pianoforte in question, even if the property of the claimant Jessie Williamina Strachan Andrews, having formed part of the furnishings of pursuer's house during the whole year of the defender's tenancy, it is subject to the pursuer's right of hypothec, and the claim therefor ought to be rejected, with expenses.”

The claimant pleaded—“(1) The pianoforte in question being the absolute property of the said Jessie Williamina Strachan Andrews, as condescended on, is not subject to the pursuer's hypothec in the said sequestration, and she is therefore entitled to decree in terms of her claim, with expenses. (2) The said pianoforte being placed or deposited in the defender's house as the absolute property of the said Jessie Williamina Strachan Andrews, and for her sole use and benefit, it is not subject to the pursuer's hypothec, and she is entitled to decree as claimed, with expenses.”

The Sheriff-Substitute ( Hamilton), before answer, allowed a proof of the alleged agreement, quoad ultra repelled the defences, and disallowed the claim for J. W. S. Andrews.

“ Note.—Besides the question as to the agreement above referred to, the only point in the defences which calls for special notice is whether the pianoforte claimed by the defender's daughter is subject to the landlord's hypothec. Upon that point the authorities are against the defender's contention.—Bankton, i. 17–11; Bell's Pr. sec. 1276.”

The claimant appealed to the Sheriff ( Davidson), who recalled the Sheriff-Substitute's interlocutor, and before answer allowed the parties a proof of their averments, so far as denied or not admitted.

A proof was thereafter led before the Sheriff-Substitute, in which the defender failed to prove the alleged agreement with the pursuer John Montgomerie Bell.

Thereafter the Sheriff-Substitute pronounced an interlocutor finding that the defender had failed to prove the agreement alleged, and that the warrant of sequestration obtained against him was duly and competently executed, and that the pianoforte belonging to the defender's minor daughter Jessie W. S. Andrews was rightly included in the sequestrated effects. He therefore repelled the whole defences; of new disallowed the claim of J. W. S. Andrews, and granted warrant for sale of as much of the sequestrated effects as would pay the balance of rent due.

The defender appealed to the Sheriff ( Davidson), who dismissed the appeal and adhered to the interlocutor appealed against.

The defender appealed to the Court of Session. No appeal was noted for the claimant J. W. S. Andrews. She was represented in the Court of Session by a separate agent from the defender, his name being marked on the back of the print as “agent for claimant.” The same counsel appeared for defender and the claimant.

Argued for the claimant J. W. S. Andrews—The piano not being the landlord's property could not be pledged by him to his landlord in security for his rent. To render the property of a third party in the house of the tenant subject to the landlord's hypothec, two requisites must be present, namely, it must be there with consent of the owner, and must be there permanently—Bell's Com. (7th ed.) ii. 29; Cowan v. Perry, note to Bell's Com. (7th ed.)ii. 30; Wilson v. Spankie, December 17, 1813, F.C.; Jaffray v. Carrick, November 18, 1836, 15 S. 43, per Lord Moncreiff; Adams v. Sutherland, November 3, 1863, 2 Macph. 6, per Lord Deas. Furniture on hire met both of these requisites, because the broker is held, in respect of the hire paid to him, to take the risk of its being sequestrated for the hirer's rent—Bell's Com. ii. 30. But furniture gratuitously lent ( Cowan, supra) or detained against the tenant's will ( Jaffray, supra) was exempt. Neither requisite was present here. The owner of the article here had no choice but to put it in her father's house. It was not lent to the tenant to form part of his furniture; it was merely deposited by his daughter in his house (in which she resided) for safe custody, and that only temporarily, for she might have left her father's house, as, for example, to be married, and take it with her. Being the subject of deposit in his hands, it could not be made by him the subject of pledge for his own debt. There was no case in which a single article, the property of a third party, had been held liable— Countess of Callander, 1703, M. 6244, Bell's Com. ii. 30, note. The piano in Pearson v. Robertson, June 6, 1820, F.C., was hired.

Argued for the respondent—The piano was properly included in the sequestration; it was in the house for the whole period during which rent was due, and furniture permanently in the house is subject to the landlord's hypothec. The argument would apply to any musical instrument, but in the present case the piano was used as part of the furniture of the room. The general law was laid down in Stair, iv., 25, 3; Adam v. Sutherland ( supra cit.); Jaffray v. Carrick ( supra cit.). Without this piano, which was one of the best things in the house, the house would not have been properly furnished to afford the landlord security for his rent. It was not a valid objection that

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the article did not belong to the tenant.—See eases of Cowan v. Ferry ( supra cit.); Wilson v. Spankie ( supra cit.); Bell's Prin. 1276; More's Stair, 83; Hunter's Landlord and Tenant, ii. 377. If the piano was brought in to form permanently a part of the ordinary furniture of the house, it was subject to the landlord's hypothec.

At advising—