BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Kimmie's Trustees v. Armour [1899] ScotLR 36_675 (26 May 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0675.html Cite as: [1899] SLR 36_675, [1899] ScotLR 36_675 |
||
[New search] [Printable PDF version] [Help]
Page: 675↓
[Sheriff Court of Renfrewshire.
An action raised in the Sheriff Court for payment of a year's rent amounting to £28, contained conclusions for authority to carry back certain furniture which had been removed by the defender, and for sequestration thereof. When the case first came before the Sheriff he granted warrant to arrest on the dependence, and to the officers of the Court to carry back the furniture as craved. The sum concluded for was consigned by the defender in Court, and accordingly the warrant to sequestrate was not executed. From the defender's subsequent averments on record, which were admitted by the pursuer, it appeared that the defender had paid a quarter's rent of £7.
The defender having appealed against the Sheriff's judgment to the Court of Session, the pursuer objected to the competency of the appeal on the ground that the true value of the cause was only £21.
Held that the appeal was competent on the grounds (1) (following the case of Buie v. Stiven, 2 Macph. 208) that the cause having originally been not under the value of £25 did not cease to be of that value if at an ulterior stage the interest of the parties was diminished, and (2) that as the sum consigned still remained in Court, the value of the cause had not been diminished.
An action was raised in the Sheriff Court of Renfrewshire by the trustees of the late Mrs M'Kimmie, as proprietors of the subjects No. 21 Queen's Crescent, Cathcart, against Mr Thomas Armour, ship chandler, who was tenant of a dwelling-house at the above address. The summons craved the Court “to grant warrant to officers of Court to search for, take possession of, and carry back from premises at Crookston, or such other premises to which they have been removed, to the premises No. 21 Queen's Crescent, Cathcart, now or lately occupied by the defender, the whole fittings, furniture, goods, and other effects which have been in the said last-mentioned premises since the term of Whitsunday last 1898, and were and still are subject to the pursuers' hypothec.” …
There was a further conclusion for sequestration of the defender's furniture, and for payment of two sums of £14 each, being the rent of the premises for two half-years, and for warrant to sell the whole or so much of the sequestrated effects as would pay the above amounts.
The pursuers averred that the defender took the said dwelling-house as from Whitsunday 1898 to Whitsunday 1899 at the rent of £28, and that he had removed therefrom certain furniture and other effects belonging to him which were subject to the landlord's right of hypothec.
The defender averred that he had been compelled to remove from the house owing to its insanitary condition. He further averred that the rent was payable quarterly, and that he had paid the first quarter's rent of £7. The pursuer admitted this payment.
The Sheriff-Substitute ( Henderson) on 17th October 1898, when the petition was presented, granted “warrant to arrest on the dependence; meantime to officers of Court to carry back, inventory, and secure as craved.” The defender consigned in Court the sum concluded for, £28. On 1st November the Sheriff-Substitute allowed the parties a proof.
The Sheriff-Substitute on 14th February 1899 pronounced an interlocutor by which he found that the defender was entitled to leave the pursuers' house, and that he was therefore not liable in the half-year's rent from Martinmas 1898 to Whitsunday 1899,
The pursuers appealed to the Sheriff.
Page: 676↓
On 17th April the Sheriff recalled the interlocutor of the Sheriff-Substitute, and found, inter alia—“(7) That this petition for sequestration was presented on 17th October, but by arrangement the sum concluded for, being a year's rent, was consigned by the defender in the hands of the Clerk of Court, and in consequence of that the warrant to sequestrate was not executed; and (8) that it is admitted by the pursuers that they were in error in concluding for a full half-year's rent, the defender having on 19th August last paid the rent for the first quarter of the current year; and as the legal result of these findings—Finds that the defender is now liable for ( a) the sum of £7 sterling, with legal interest thereon from the term of Martinmas last till paid, and ( b) the sum of £7 sterling, with legal interest thereon from 15th February last till paid, and that he will on 15th May next be liable in another sum of £7 sterling, being the quarter's rent which will then become due.”
The defender appealed to the First Division.
The pursuers objected to the competency of the appeal, on the ground that the value of the cause was less than £25, and argued—It was admitted that £7 had been paid by the defender, which reduced the amount sued for to £21. It was true that the face value of the cause was £28, being the amount appearing in the summons, but the true value was determined by looking at the condescendence. It was not necessary that there should be a formal restriction of the amount in the summons. The other conclusions in the summons were only ancillary to the leading conclusion for payment of money, and accordingly they did not aid the appellant in supporting the competency of the appeal. Payment of the claim would at once put an end to the proceedings— North British Railway Company v. M'Arthur, November 5, 1889, 17 R. 30.
Argued for appellant—1. The conclusion was for £28, and accordingly the appeal was competent— Buie v. Stiven, December 6, 1863, 2 Macph. 208. 2. Moreover there wore other conclusions which took the action outside the £25 limit and made the appeal competent— Broatch v. Pattison, December 10, 1898, 1 F. 303; Henderson v. Grant, March 17, 1896, 23 R. 659; Thomson v. Barclay, February 27, 1883, 10 R. 694.
At advising—
I do not think it necessary in this case to determine whether the conclusions of the action form the only test for determining the competency of an appeal, because I think this case is ruled by the case of Buie v. Stiven, 2 Macph. 208. In that case an inspector of poor brought an action of relief in the Sheriff Court for repayment of certain sums which had been actually advanced by him to a pauper, and of similar sums which might be advanced by him in the future. In the course of the proceedings the pauper died, which put an end to the claim for future advances. Thereupon the pursuer lodged a minute restricting the conclusions of the summons to the sum of £13, 6s. 8d., being the amount actually advanced. The Sheriff decerned for this sum, and the defender appealed. The pursuer objected to the competency of the appeal, which was by way of advocation, on the ground that the cause was not of the value of £25, but the Court held that it was, and that the appeal was competent. In giving judgment Lord Neaves said—“It seems to me that when a series of judgments have been pronounced in a case, if any of these judgments be in a cause of the value of £25, that makes the cause capable of advocation, and the cause is not rendered unsusceptible of advocation, because before the last judgment it may have ceased to be of the value of £25, or of no value at all. The party is still entitled to go back to the previous judgment, and have the case considered as it stood;” and the Lord President, then Lord Justice-Clerk, said—“I think that this cause, being originally not under the value of £25, could not cease to be of that value, because in an ulterior stage of the proceedings the direct pecuniary interest of the parties came to be of small amount.”
Let us see what took place in this action. We find that it contained a conclusion to grant warrant to officers to carry back to Queen's Court the furniture removed by the defender. When the case first came before the Sheriff-Substitute he granted “warrant to arrest on the dependence, meantime to officers of court to carry back, inventory, and secure as craved.” Then we find in the Sheriff Principal's judgment the seventh finding “that this petition for sequestration was presented on 17th October, but by arrangement the sum concluded for, being a year's rent, was consigned by the defender in the hands of the Clerk of Court, and in consequence of that the warrant to sequestrate was not executed.” Now, when this interlocutor was pronounced no admission had been made that a quarter's rent had been paid, and the sum concluded for was a whole year's rent, £28. Accordingly, when this judgment was pronounced the cause was beyond doubt of value above the amount of £25. If that be so, then in accordance with the judgment in the case
Page: 677↓
There are other grounds upon which the competency of the appeal might be supported, which it is unnecessary to consider.
The
The Court repelled the objections to the competency of the appeal.
Counsel for the Pursuers— M'Lennan. Agents— Cumming & Duff, S.S.C.
Counsel for the Defender— J. Thomson. Agent— Wm. Balfour, Solicitor.
