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Scottish Court of Session Decisions >>
Macdowal of Castle-semple v Jamieson. [1781] Mor 6215 (15 February 1781)
URL: http://www.bailii.org/scot/cases/ScotCS/1781/Mor1506215-017.html Cite as:
[1781] Mor 6215
The landlord's right of hypethec over stocking, although not applied by sequestration to individual animals, was found preferable to the claim of a poinding creditor.
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In September 1777, Jamieson, who was a creditor to Robert Stewart a tenant of Castlesemple's, executed a poinding of certain cattle belonging to Stewart that were on the farm; upon which the landlord brought an action of spuilzie against Jamieson, who
Pleaded in defence; A landlord's hypothec on the stocking of his tenant's farm, unless extended by sequestration to the individual parts that compose it, is purely general, and imports only a right in it as an universitas merely, without any respect to its amount being greater or less. Hence it is clear, that, if no sequestration have been used, the tenant may dispose of any part of it by sale, which will be effectual to a bona fide purchaser: and if, by a voluntary sale, a purchaser may thus acquire the property of stocking, it surely cannot be denied to an onerous creditor, who has followed out the legal course of diligence.
Answered for the landlord; Though the premises in this argument are admitted, the conclusion does not follow. The case of a creditor is different from that of a bona fide purchaser. For a creditor attaches, by legal diligence, the right of his debtor, tantum et tale, precisely as it stands in the debtor's person; subject for example, as in the present case, to his landlord's claim of hypothec.
The Lords found the defender liable to the pursuer for the value of the goods carried off, and intromitted with by him.
Lord Ordinary, Elliock.Act. W. Wallace.Alt. Baillie.Clerk Menzies.
Fol. Dic. v. 3. p. 291. Fac. Col. No 37. p. 67.
