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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Laughlan v. Reilly [1892] ScotLR 30_81 (16 November 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0081.html Cite as: [1892] SLR 30_81, [1892] ScotLR 30_81 |
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[Sheriff of the Lothians.
A tenant who had a claim of damages against his landlord for injury done to the house in which he lived, removed his furniture a fortnight before the term to a house which he had taken in another part of the town, without making any arrangements as to payment of the rent. The landlord took out a small-debt sequestration in security of the rent, and when the officer charged with the execution of the complaint reported that he had been unable to do his duty because the goods and effects subject to hypothec had been removed, the Sheriff, without notice to the tenant, granted warrant to carry the goods back to the house from which they had been removed. This was done. The tenant brought an action for damages and solatium against his landlord.
Held (1) that the landlord was entitled to use sequestration for his whole rent, as the tenant's claim for damages was illiquid and not exigible; (2) that the use of the sequestration and warrant thereon had not been so oppressive as to subject the landlord in damages.
Observed that it was desirable that
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Sheriffs in granting such summary warrants should when possible give notice to the respondent, or have the facts before them for consideration— Johnston v. Young, October 27, 1890, 18 R. (J.C.) 6, referred to.
Michael M'Laughlan, broker and dealer, resided and carried on business in a house in Castle Street, Dunbar. Sometime prior to Whitsunday 1891 the subjects were acquired by Martin Reilly, also a broker and dealer. He made certain alterations on the building which were attended with some inconvenience to M'Laughlan. About the end of October M'Laughlan began to remove his furniture from the house in Castle Street to another he had taken in Writers' Court, Dunbar. Reilly took out a small-debt summons of sequestration in security of the rent against him, and the execution thereof was entrusted to W. C. Miller, sheriff-officer and messenger-at-arms, Haddington. Upon 4th November the officer went to the house in Castle Street but found it closed. On applying to M'Laughlan's wife for access to the house, it was refused. Having satisfied himself that furniture had been removed, he inscribed a minute on the sequestration complaint as follows—“In respect I have been unable to execute the within warrant upon the said Michael M'Laughlan, defender, as he has removed the goods and effects subject to the pursuer's right of hypothec from the house and shop within mentioned, warrant is respectfully craved to officers of court to search for and carry back said goods and effects to the said house, there to be inventoried as sequestrated and secured in terms of said warrant.” This minute was presented to the Sheriff-Clerk, and warrant thereon obtained from the Sheriff-Substitute without any previous notice thereof to M'Laughlan. Upon 10th November the officer returned to Dunbar, opened the door of the house by picking the lock, and took the furniture back to the house in Castle Street. Owing to other business he was unable to make out the inventory and appraisement until 12th November.
M'Laughlan brought an action against Reilly in the Sheriff Court at Haddington. He claimed (1) £10 for injury caused to his business during the progress of the alterations, and (2) £50 in name of damages and solatium. The pursuer averred that he had been willing to settle with the defender as to the rent due on the footing that reasonable abatement was to be made in respect of the first claim of damages, and reserving as to the other.
The pursuer pleaded—“(1) The sequestration and whole procedure thereon having been most unwarrantable, or without good cause, and wrongful and illegal, also nimious and oppressive, the pursuer is entitled to take exception to the same as done, especially as regards the minute and warrant to carry back, and the sequestration should accordingly be recalled, and the said procedure pronounced null and void, and of no effect. (3) The pursuer having been deprived by the defender of the peaceable occupation of the house and shop in question, to his loss injury and damage as condescended on, the defender is liable to him in suitable reparation in the premises. (4) The sequestration and procedure thereon having been unwarrantable, or without good cause, and wrongful and illegal, and otherwise as aforesaid, and to the serious injury of the pursuer's business, also of his character or reputation and feelings, and therefore to his loss and damage, the defender is liable to him in such loss and damage, including solatium.”
The defender pleaded—“(2) The repairs executed by the defender on the premises occupied by the pursuer were necessary, and were done in a business and tradesman-like manner, without interfering in any manner of way with the pursuer's occupation of the premises. (3) The whole sequestration proceedings being rendered necessary by the actings of the pursuer, were perfectly legal, and were carried through in a legal and regular manner. (5) The pursuer not having suffered any loss or damage through the carrying out of the sequestration proceedings, is not entitled to damages, and in any event the sum sued for is excessive.
A proof was allowed, from which the facts stated appeared.
Upon 16th June 1892 the Sheriff-Substitute ( Shirreff) pronounced this interlocutor:—“Finds it proved that on the defender obtaining possession of the tenement part of which was occupied as a dwelling-house and shop by the pursuer, the defender proceeded to execute alterations and repairs on the property, that the work connected therewith was unduly delayed and the pursuer was thereby subjected to a greater amount of annoyance and inconvenience than he was bound to submit to: Therefore finds him entitled to the sum of £3 of damages under the first conclusion for damages in the prayer of the petition and decerns against the defender for payment of said sum: Quoad ultra assoilzies the defender from the said claim of damages first concluded for: Sustains the defender's third plea-in-law, and assoilzies him from the second conclusion for damages in the prayer of the petition.
“ Opinion.—… The defender can never have intended that the pursuer should remove without paying his rent, and the Sheriff-Substitute is certain that it was not understood by the pursuer when the defender said he might leave if he did not like the place. Less than a fortnight before the term of Martinmas, and long after there was anything to trouble him, he removed his furniture, which the defender was entitled to see was kept in the house as his security for the year's rent. The removal was partly during the day and partly after nightfall. There is no hint in the course of the proof that the pursuer intimated to the defender his intention to remove, or that the defender was aware of his intention. Having got a warrant to sequestrate, it was necessary, in order to carry it into effect, to procure a warrant to take the furniture back to Castle Street. That warrant was obtained on a craving in the usual way. Such warrants are always granted as
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craved, and are granted at the risk of the party craving them. In many cases to cite a tenant to be heard on the question whether such a warrant should be granted, would only be to give him notice to have his effects put entirely beyond the reach of his landlord—see opinion of Lord Rutherfurd Clark in Johnston v. Young, October 27, 1890, 18 R. (J.C.) 6. It has always been the practice in this county to grant such warrants as craved. The Sheriff-Substitute thinks that in this case the defender was justified in applying for the warrant. The term of Martinmas was very near at hand, and the pursuer had removed his furniture without making any offer of payment of his rent. This case appears to the Sheriff-Substitute to be very different from the case of Gray v. Weir, October 28, 1891, 19 R. 25. The tenant in that case had spoken to the landlord of his intention to remove his effects before the term, and before applying for sequestration the landlord had not certiorated himself that a letter demanding payment of the rent had reached the tenant, such letter having, in fact, miscarried. The rent was paid on the officer proceeding to carry back the tenant's effects, although the warrant was executed on 26th April, some weeks prior to the term of Whitsunday 1892. That fact proving the tenant's solvency goes far to show that the taking back of the effects was not necessary in order to secure the landlord. In the present case the warrant to carry back the effects was only executed on 10th November, and if the pursuer had his rent ready he might have paid it, or if he wanted to insist on a claim of damages he might have consigned the rent. The rent was due the next day, and the amount of his claim of damages had not been ascertained. On considering the whole circumstances the Sheriff-Substitute is humbly of opinion that the sequestration currente termino, and the application for a warrant to carry back the furniture were fully justified.” The pursuer appealed to the Sheriff ( Blair), who on 19th August 1892 adhered.
The pursuer appealed.
At advising—
The facts are, that the rent of pursuer's house was just about to become due, the furniture was undoubtedly being removed, and part of it under cover of night. An order for sequestration having been granted, the officer who had to execute it reported that he could not carry it out because the house was displenished; there were no articles in it that could be appraised in the sequestration. Upon this report the Sheriff gave an order to have the furniture brought back, and it was brought back. Are damages due against the landlord for having acted as he did when he got the warrant? I do not think so, because he had ground for believing that the furniture was being removed so as to prevent him sequestrating it for his rent.
Mr M'Lennan said that his client had some claim against the landlord for damage to his business, which he set off against the claim for rent, but that does not affect the landlord's claim to have his rent paid, and his right to sequestrate the goods in security; therefore I think that the decision of the Sheriffs is right.
I only wish to say that I do not go back from my opinion expressed in Johnston's case, that the granting of such warrants de plano without any facts being stated for the Sheriff's consideration is not a practice to be approved of.
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Another ground upon which damages are sought is, that the way in which the sequestration and warrant were used was so oppressive and unreasonable in the circumstances as to be actionable. It is not said that there was anything irregular in the way in which the proceedings were gone about; indeed, it is admitted that the procedure was quite regular, but it is said that the circumstances of the case rendered the proceeding so oppressive that they are actionable. I am willing to admit that even regularly conducted proceedings of this nature may be actionable if they are carried out in certain circumstances. For instance, if a landlord who has no fear that his rent will not be paid gets a sequestration and warrant against his tenant in quite regular form, but merely from a malignant desire to annoy his neighbour, that might be actionable. On looking at the case in this aspect, have we any such circumstances. In the Sheriff's view the case is not of that character at all; in fact, on looking at all the circumstances of the case, the Sheriffs find nothing in the actions of the landlord that is to be condemned or is actionable. I should be slow to interfere with the judgment of the Sheriff in a case of this kind unless I thought his judgment clearly wrong, but in this case I see no grounds for interference.
I am disposed to admit, with your Lordship, that where there is no reason stated to the Sheriff why he should not give notice to the party against whom the warrant is sought, that he ought not to grant warrants of this kind without giving notice. I cannot lay down the rule that it is improper for a Sheriff to grant a warrant to search for and restore goods to the place from which they have been removed without giving notice to the party. I think he may, but if there is nothing stated to him that would make it advisable for him to grant the warrant at once I think he should give notice.
In the case of Johnston I did not mean to specify the conditions on which such warrants could alone be issued. My purpose was to impress on Sheriffs the duty of being cautious in granting them.
As regards the first ground, I think that has been disposed of by what Lord Young has said. It is out of the question to say that a landlord is not entitled to use sequestration for his full rent because the tenant has or pretends to have an illiquid claim of damages which he wishes to set-off against his landlord's claim for rent which is liquid and exigible.
The second ground of action presents more difficulty, although in this case I have no hesitation in repelling it as a ground of action. I agree with your Lordships that Sheriffs in granting warrants of this kind would do well to exercise some discretion in making inquiry into the circumstances in which the warrant is sought before granting it.
But every warrant of this kind is sought for periculo petentis, and if an action for damages is brought against the person who obtained the warrant, upon the ground that the warrant had been improperly asked for, the person who got the warrant will require to justify what he did.
It is not enough in an action of damages to say that the asking for the warrant was irregular; there is no irregularity in asking for a warrant. It may be that in the circumstances of any particular case a certain warrant should not have been applied for, and a man may be answerable for his conduct in asking for a warrant when the circumstances made it improper for him to do so. But if the application for the warrant is justified, that will be a defence to the claim for damages.
In my opinion the circumstances of this case fully justified the landlord in applying for the warrant complained of. I think it was a just and proper thing in the circumstances to ask, and a just and proper thing at the time to grant.
The Court pronounced this judgment:—
“Find in fact and in law in terms of the interlocutor of the Sheriff-Substitute, and affirmed by the Sheriff: Therefore dismiss the appeal, and affirm the interlocutors appealed against,” &c.
Counsel for the Appellant— M'Lennan. Agent— Robert Broatch, L.A.
Counsel for the Respondent— Salvesen— Deas. Agent— J. W. Deas, S.S.C.