Scottish Court of Session Decisions

This was an action of damages for wrongous use of diligence brought in the Sheriff-Court at Glasgow by Mrs Maggie Alexander, 122 North Frederick Street, Glasgow, against James Dodds, commission agent, 27 Union Street, Glasgow, and another, as trustees of the late Thomas Campbell, warehouseman, Glasgow, the landlords of a house occupied by the pursuer as tenant.

The Small Debt (Scotland) Act 1837 (1 Vict. cap. 41), section 5, makes provision for the summary disposal of actions of sequestration and sale for payment of rent within the statutory limit as to amount, and enacts—“And if after sequestration the tenant shall pay the rent claimed, with the expenses, to the pursuers, or consign the rent, with £2 sterling to cover expenses, in the hands of the Clerk of Court, the sequestration shall ipso facto be recalled; in case of payment, on the clerk writing and signing on the back of the summons or warrant the words ‘payment made,” which, on evidence being produced to him of payment of the rents claimed, with expenses, he is hereby required to do; and in case of consignation, after the clerk shall in like manner have written and signed the words ‘consignation made,’ on the same being intimated by an officer of Court to the sequestrating creditor.”

The pursuer averred—“(Cond. 2) During the half-year prior to Whitsunday 1902 a series of fires broke out in the pursuer's house owing to a defect in one of the chimneys, whereby the pursuer sustained loss and damage to her clothes, furniture, and effects. (Cond. 3) The pursuer through her agents duly intimated a claim of damage to the defenders' factors, and as they declined to entertain the claim she consigned her rent, amounting to £8, 10s., due at Whitsunday 1902, with the clerk of court, and intimated to them that she had done so.”

The consignation receipt was in the following terms;—“Glasgow, 15th May 1902.—You have this day … consigned in my hands the sum of £8, 10s. to meet half-year's rent of premises at 122 North Frederick Street, aforesaid, due to-day, for which an action of sequestration at the instance of” the defenders “is threatened.—Yours truly,

Jno. Wood, S.C.D.”

The pursuer further averred—“(Cond. 6) The defenders, notwithstanding the intimation made to them of the consignation of said rent and of pursuer's willingness to have her liability and counter claim determined by an action for payment in the Small Debt Court, on the 7th of June 1902 raised an action in the Small Debt Court at Glasgow for sequestration and payment of the rent of said house due at Whitsunday 1902. (Cond. 7) By virtue of the warrant contained in the said summons the defenders illegally and wrongfully and oppressively caused the pursuer's furniture to be sequestrated and inventoried by a sheriff officer. (Cond. 8) The pursuer entered appearance in the said action of sequestration and payment and served a counter claim for £17, 1s. 6d. on the said defenders for the loss and damage sustained by her by said fires in said house, alleging that the same had occurred through the carelessness of the defenders or their factors. On 7th July 1902 the Sheriff-Substitute sustained the pursuer's counter claim to the extent of £8, 10s., being the amount of the sum sued for in the action, and assoilzied the present pursuer, with £1, 11s. of expenses. (Cond. 10) The fact that the pursuer's furniture and effects were sequestrated by the defenders became known in the tenement in which she resides, and it was currently reported among her neighbours and among the tradesmen with whom she dealt that she was unable to pay her rent, and her credit was in that way seriously affected.”

The defenders pleaded—“(2) The pursuer's averments are irrelevant, and insufficient to support the conclusions of the petition.”

On 26th December 1902 the Sheriff-Substitute ( Strachan) allowed a proof before answer.

The pursuer appealed to the Court of Session for jury trial.

Argued for the respondents—The rent having been admittedly past due, the respondents were within their legal rights in resorting to the remedy of sequestration,

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and there was no irregularity in the procedure, and no special circumstance that could be held to exclude sequestration. The only special circumstance founded on by the appellant was the consignation of the rent in the hands of the Sheriff Clerk Depute, but that was not such consignation as was prescribed by section 5 of the Small Debt Act; the granting of the receipt was a mere ultroneous proceeding on the part of the Sheriff Clerk, and its terms gave the respondents no security. The respondents had omitted nothing that was necessary to make the sequestration regular— Pollock v. Goodwin's Trustees, June 24, 1898, 25 R. 1051, 35 S.L.R. 821. The sequestration proceedings were justified, and even harshness in the use of diligence did not make it wrongful— Robertson v. Galbraith, July 16, 1857, 19 D. 1016. An illiquid claim of damages was no answer to a demand for payment of rent. The action was irrelevant.

Argued for the appellant—In the circumstances the rent was no more a liquid debt than the counter claim, and after consignation sequestration was unjustifiable and without cause. The pursuer was entitled to an issue— Oswald v. Graeme, June 26, 1851, 13 D. 1229; M'Leod v. M'Leod, February 11, 1829, 7 S. 396; Munro v. M'Geoghs, November 15, 1888, 16 R. 93, 26 S.L.R. 60.