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SCOTTISH_Court_of_Session_Shaw

Page: 934

016SS0934

M'Gill

v.

Ferrier

No. 167.

Court of Session

2d Division

Mar. 9 1838

Jury Cause.

R., Lord Meadowbank, Lord Glenlee, Lord Medwyn, Lord Justice-Clerk, Lords President, Gillies, Mackenzie, Corehouse, Fullerton, Mon-Creiff, Jeffrey, Cockburn, Lord Cuninghame.

Andrew M'gill     Pursuer.— Counsel:
D. F. Hope— Robertson.
Charles Ferrier and Others.—     Defenders.— Counsel:
M'Neill— Anderson.

Subject_Meditatio Fugœ Warrant—Landlord and Tenant—Obligation in diem— Headnote:

Application by a landlord against a tenant under a 19 years' lease which had 15 years Still to run, to have the tenant imprisoned as in meditatione fugæ till he found caution do judicio sisti to the amount of the future rents of the lease, the terms of payment being first come and bygone, and warrant following thereon,—Held to be competent and legal.


Facts:

Bill of Exceptions to the direction on the trial of this case, March 17, 1837, mentioned ante, XV. 884.

The defender, Mr Charles Ferrier, trustee on the estate of Captain M'Neill of Gallochoilly in Argyleshire, let the sheep-farm of Braids on that estate for 19 years from Whitsunday, 1831, to the pursuer, M'Gill, and two other parties (M'Gill being the most responsible of the three), at a rent of £111, payable at Martinmas yearly, the first year's rent being payable at Martinmas, 1832. After possessing the farm for several years, the tenants fell into arrear, and became desirous of giving up the lease, M'Gill intimating his intention of emigrating to America. Thereupon Ferrier, with the view of having M'Gill arrested as in meditatione fugæ until he should find caution de judicio sisti to answer in an action for the claims against him under the lease, made affidavit (April 7, 1835) that M'Gill was indebted in the sum of £122 for the rents due at Martinmas last; and in the sum of £111, due at Martinmas next, 1835, “the said term being first come and bygone; as also for the like sum of £111 sterling yearly, at the term of Martinmas for fifteen years subsequent to the said term of Martinmas, 1835, the said terms and years being first come and bygone, with the interest of the said yearly rents from the time the same shall become due, till payment, in terms of the minutes of agreement passed between the deponent and Malcolm M'Neill, on the one part, and the said Archibald M'Gill, Donald M'Lean, and Andrew M'Gill, on the other part, dated 18th and 24th March, 1831.” Ferrier farther deponed to his belief that M'Gill was in meditatione fugæ, and was preparing to go to America. Upon this affidavit a petition was presented in name of Ferrier to the Sheriff of Argyleshire, setting forth the facts therein deponed to, and praying—“May it therefore please your Lordship, on considering this petition, and the said affidavit, to grant warrant to bring the said Andrew M'Gill before you for examination, and thereafter to grant warrant for imprisonment till he finds sufficient caution to the amount of the said debts, acted in your Lordship's court books, de judicio sisti, in any action for payment of said debts already brought or to be brought against him, at the petitioner's instance in a competent court, within six months of the date of such warrant of imprisonment, and find him liable in expenses.”

The Sheriff having granted warrant to apprehend M'Gill for examination, he declared, inter alia, that he was giving up his lease, and preparing to leave the country; whereupon the Sheriff granted “warrant to commit the said Andrew M'Gill to the tolbooth of Campbeltown, there to remain till he finds caution acted in the books of Court to the amount of the debts mentioned in the petition, de judicio sisti, in any action for payment of the said debts brought or to be brought against him at the petitioner's instance, in a competent court, within six months from the date of such caution.” No caution having been found, this warrant was carried into execution, and M'Gill was incarcerated in the jail of Campbeltown, from which, after an imprisonment of forty-nine days, he was liberated under a bill of suspension and liberation passed of consent, on his agreeing to find caution for the arrears, and for the rent up to Whitsunday, 1836.

M'Gill then brought an action of damages for wrongous imprisonment against Ferrier, as trustee on Gallochoilly, and against the local factor, M'Lean, and the local law-agent, Colville. The following issue was sent to trial:—“Whether, on or about the 24th day of April, 1835, the defenders, or any of them, wrongfully apprehended or incarcerated the pursuer, or wrongfully caused him to be apprehended or incarcerated, and detained in the jail of Campbeltown, from the said day till on or about the 12th day of June, 1835, or during any part of the said period, to the loss, injury, and damage of the pursuer.”

Evidence was led for the pursuer, but the defenders led no evidence, contending, with reference to the proceedings in question, that a landlord was entitled to apprehend a tenant during the currency of his lease, as in meditatione fugæ, until he found caution de judicio sisti, for the payment of the rents of the remaining years of the lease, the terms being first come and bygone. The presiding Judge (Lord Justice-Clerk), in the course of his charge to the Jury, gave the following direction in law, viz.—“That the application to the Sheriff having prayed for warrant for Imprisoning the pursuer till he found sufficient caution to the amount of the said debts, in so far as the same regarded ‘the like sum of £111 sterling yearly, at the term of Martinmas, for the fifteen years subsequent to the said term of Martinmas, 1835, the said terms being first come and bygone, with the interest of the said yearly rents from the time the same shall become due till payment,' as set forth in the affidavit and petition of Mr Ferrier, was not regular or competent, or warranted in law, and that warrant having been granted in terms thereof, the defender, Mr Ferrier, is responsible for the consequences.”

The Jury returned a verdict for the pursuer, with £200 damages against the defender, Ferrier, and found for the other two defenders.

To the above charge Ferrier excepted, “that it was erroneous in point of law, and that instead of the direction given as aforesaid, his Lordship should have directed the Jury, that the petition at the instance of Ferrier, and warrant following thereon, were competent, and warranted in law.”

In support of the exception it was argued;—

The obligation on a tenant under his lease for payment of rent, is an obligation in diem or future, in which dies statim cedit, licet nondum venerit, and is not a conditional obligation, the debt being due from the date of the contract, although the performance is suspended till the term or terms of payment have respectively elapsed. 1 Of the same character are many other known obligations, such as the obligation for payment of annuities under an annuity bond—of liferent provisions to a widow under a marriage-contract—of instalments of a composition under a composition contract. Nor is it any answer to say that the obligation of the tenant to pay rent depends on the counter-obligation of the landlord to keep the tenant in beneficial possession, and upon the non-occurrence of sterility or inevitable calamities; for such accidents, although by a remedy in equity they may protect the tenant from payment of rent, do not affect the character of the obligation, or convert it into a conditional one. According to invariable usage, letters of horning are granted not only for arrears, but for future payments; and the same rule is followed in practice, whether the obligations to be enforced have reference to a lease, an annuity-bond, a liferent provision, or the like, it being always understood that a new charge must be given after every term, before proceeding to execution, while the general warrant to charge for future termly payments supersedes the necessity of new letters of horning. Decrees are every day granted for such payments, in cases of aliment, and of filiation and aliment; and, even in regard to leases, the competency of concluding for future rents, though merely incidentally decided, has been sustained. 2 The defender's claim for future rents being then of so determinate a character as to admit of being constituted by action and decree, there was no incompetency in the application for caution to abide the result of it.

_________________ Footnote _________________

1 Erskine III., 1, 6.

2 Duff v. Bradberry, May 19, 1825, ante VI., 23; Woodward v. Wilson, March 10, 1829, ante VII., 566; Douglas v. Jones, June 30, 1831, ante IX., 856.

The pursuer was not entitled to get rid of the contract of lease, and of his obligation under it, by leaving the country and withdrawing his person and property out of the reach of the defender's diligence; and if the obligation for future rents was existing and operative, though execution was suspended, the application in question, to the sheriff, was legal and proper. Were the contrary to be held, the doctrine would be attended with serious consequences throughout the whole of the west Highlands, where emigration is prevalent, and would give to the tenant choosing to emigrate a complete immunity from all the prestations incumbent on him. The competency of the application and relative warrant is supported not more by legal principle than by the analogy of decided cases; 1 while there is no decision in support of its illegality.

_________________ Footnote _________________

1 2 Bell, 144; Whitecross v. Magistrates of Edinburgh, Feb. 25, 1819; Reid, July 10, 1823, ante II., 468 (new ed. 418); Cameron v. Stewart, Nov. 18, 1823, ante II, 439 (new ed.); Thom v. Black (the case of a contingent obligation), Dec. 10, 1828, ante VII, 158; Duff v. Bradberry, supra; Dick v. Stewart, Jan. 5, 1836, ante XIV, 205, and F. C.

M'Gill in answer contended:—

It is not enough to show that in certain circumstances, and under certain limits, a meditatio fugæ warrant may be enforced for a future debt; it must be established that there was no wrongful use of the diligence in apprehending and imprisoning the pursuer, until he should find caution for the fifteen years' rents to become due under the lease. A lease is a mutual, and therefore a conditional contract; no pure and unconditional obligation being imposed upon the tenant to pay the rent, whatever may occur, and whether the landlord fulfil his part of the contract or not. A lease, while it binds the tenant to pay the rent, also binds the landlord to implement his obligation, by upholding the possession of the subject tantum et tale as it was let. If the lands be overblown with sand and become sterile, or if they be inundated with water and are incapable of cultivation, or if the house or the cotton-mill let be burned, the obligation to pay the rent, which is said by the defender to be certain though future, is extinguished.

There must be a reasonable limit to the demand for caution in a case such as the present, which is one where the Court, in the exercise of a sound discretion, have to say whether the law will sanction the extent of the security demanded, or will hold it to be oppressive. Pushing the principle contended for on the other side to its length, it can hardly be maintained that a tenant under a lease for a hundred or a thousand years, of which only a few years had run, could be apprehended as in meditatione fugæ, till he found security for the rents of the whole subsequent years. It is not a reasonable and suitable criterion for determining a question of this kind, to confine the attention to the simple fact, that in the abstract the mere circumstance of the debt being future does not render the application unwarrantable, and then from that fact to draw the conclusion that the diligence may also be lawfully used for any future debt, whatever be its nature or amount, and to whatever indefinite period the obligation to pay may extend. Such a view of the matter is inconsistent both with the practical administration of justice, and with the principles by which matters of this kind must necessarily be regulated. The application and warrant in the present instance, and generally the use made by the defender of his diligence, are not sanctioned by any of the cases or analogies referred to. There is no room for pleading hardship to the landlord in a matter of this kind. He is armed in a more effectual manner against loss through his tenant than an ordinary creditor; for he has, first, his right of hypothetic, by which he can secure a preference, and then he has the remedies of the Act of Sederunt, 1756, which, moreover, furnish a fair criterion of the extent to which caution for future rents may, under any circumstances, reasonably be demanded.

The cause was put out for advising, July 6, 1837.

Lord Meadowbank.—I have attentively considered this case, and am extremely sorry to have to differ from the opinion delivered to the Jury by the head of the Court. A legal contract was entered into by missives of lease between the parties. (His Lordship stated the circumstances above referred to.) Looking to the nature of the subject let and to the view in which the parties entered into the contract, it was competent for the defender to have brought an action against the pursuer to oblige him to enter into a formal lease, and for decerniture that he should be ordained to pay the arrears of rent, and the rents for the future years at the terms when they fell due, and interest from the date of the rent falling in arrear. In the event of the tenant falling into arrear or deserting his farm and leaving it unlaboured, there was a remedy under the Act of Sederunt 1756, if the landlord thought fit. But the Act of Sederunt has no reference to a remedy for enforcing the provisions of the lease, and it has not the effect of cutting the landlord out of all the other remedies competent to him by law. If he choose to say, I do not wish to remove the tenant but to enforce the obligations of the lease, he is not by law required to go to the Act of Sederunt. There is no law against a landlord and tenant entering into a lease, say for fifteen years, and making a stipulation that the whole of the rents should be paid at the expiry of the lease, that the tenant should go on improving his lands, and pay a certain sum at the end. If the parties had done so here, had the defender no remedy during the currency of the lease, by which to prevent the pursuer fraudulently depriving him of his right? And if the rent is payable in annual sums during the same period, and the pursuer is found to be in meditatione fugæ, is the defender not to have his remedy? In the case of Thom v. Black, in which the principle of meditatio fugæ warrants was well laid down by Lord Cringletie, 1 it was held that such warrant could be granted upon a contingent debt. In regard to a future debt, which is a more favourable case, it was held in Cameron v. Stewart that it would have been competent to have applied for the remedy, for which the present application was made, in security of the payment of future annuities. So, in cases of aliment the practice is acknowledged to be in conformity with the view taken by the defender. Looking to the allegation here that the tenant was intending to defraud the landlord of his rents and leave

_________________ Footnote _________________

1 Ante, VII. 169.

the country, the question is, was Mr Ferrier in bona fide to take the oath which he has taken, and apply for the warrant? I think he was, and I found my opinion on what I have already stated; and on the fact that he was entitled to bring an action concluding for payment of the rent for each year, the term being first come and I bygone,—and if so, it would be strange, where the practice of the country admits of decree being given to secure such a debt, that warrant should not be obtained to cause the debtor to present himself in Court to answer to the claim, or find caution to its amount. Thus I think that the application and warrant in question were competent and legal.

Lord Glenlee.—There may be oppression in the use of diligence perfectly legal. No doubt caution may, in particular circumstances, be required for payment of future rents, but it is different when you require a tenant to find caution for the whole years of a lease. It would have been a good rule to judge whether the operation of the diligence was oppressive or not, had Mr Ferrier not asked caution to a greater extent than he would have asked in an action under the Act of Sederunt 1756. Could he have proposed to keep the tenant in prison during the whole period of the lease ? Is it not oppressive, asking a warrant to this extent? I am inclined therefore to agree with the direction of the presiding Judge, that the application was not competent or warranted in law.

Lord Medwyn was of opinion that the bill of exceptions ought to be allowed.

Lord Justice-Clerk continued to be of the same opinion he had expressed in his charge.

The Court being thus equally divided, their Lordships ordered cases, and to be laid before the other Judges for their opinion on the Bill of Exceptions.

The following opinions were returned:—

Lords President, Gillies, Mackenzie, Corehouse, Fullerton, Mon-Creiff, Jeffrey, and Cockburn.—“The pleas of the parties in the Record, and at the trial, appear to have rendered it imperative on the presiding Judge to give a positive direction to the Jury in point of law, whether the defender's application to the Sheriff, for a warrant to imprison the pursuer until he should find caution de judicio sisti, was in itself legal and competent, or was incompetent, and not warranted in law, in so far as it prayed that the caution to be required should be to the amount, not only of the rents of the farm which were past due, but of the rents for all the future years of the endurance of the lease, as they should successively fall due. The opinion delivered, and the direction given, under such circumstances, having been, that the application, and of course the warrant, ‘were not regular or competent, or warranted by law,' the effect was necessarily to render it incumbent on the jury to find a verdict for the pursuer on the issue, Whether the pursuer was wrongfully imprisoned? And the bill of exceptions presented against that direction brings before the Court, in a clear and satisfactory form, the important question of law, Whether the application, in so far as it prayed for caution in such terms, was competent and warranted in law or not? Understanding the question to be thus a question as to the strict legal competency of the petition and warrant, it appears to us, that, though the evidence set forth in the bill is materially useful for enabling the Court to understand clearly the nature of the case, we are not called upon to form any opinion on a different question which may be in-volved in the issue, with reference to the averments and pleas in the Record, namely, whether upon the evidence there was or was not an undue and oppressive use of diligence, supposing it not to have been in itself incompetent or illegal. We confine ourselves entirely to the direction in point of law, to which the exception is taken.

“It is an admitted fact in the case, that there was a binding and subsisting contract of lease, by which the pursuer was definitively bound to pay yearly to the defender the stipulated rent of £111 for the full period of nineteen years, from the terms of entry at Whitsunday and Martinmas 1831. On the faith of that obligation, he had obtained possession of the farm, and had occupied it during several years; and certainly, in virtue of that contract, he was, at the date of Mr Ferrier's application, equally bound in law to pay the rent which had already fallen due, and to continue to occupy the farm, and pay the rent of each of the future years, as soon as it should become legally exigible. For it cannot admit of any doubt, that a man who has become tenant in such a contract has no right, at his own pleasure, to surrender or desert the farm, or to put an end to the obligations applicable to the years which are still to ran of the stipulated period. Such an idea may be practically entertained; and there are some strong indications of it in the present case. But, as a matter of law, the Court must be all agreed, that all the obligations of such a contract, from the beginning to the end of the lease, are equally binding on both the parties.

“The pursuer being thus debtor to the defender for the due fulfilment of his engagements during all the years of the lease, it appears that the defender had obtained good information, that it was the intention of the pursuer immediately to leave this country, by emigration for permanent settlement in America. There was then a considerable sum of rent due; but there was also a clear obligation to pay all the future rents as soon as the terms of payment should be come and bygone. In this situation, the defender presented his petition to the Sheriff, for apprehending the pursuer as being his debtor in meditatione fugæ, until he should find caution de judicio sisti in any action to be brought for the debt within six months. As the fact was fully admitted on the pursuer's examination, that it was his intention to leave the country, not for any temporary purpose, but for permanent residence elsewhere, no question arises on that part of the case: The pursuer confessedly was in the situation which entitled the defender to make such an application. And the only question is, whether it was rendered illegal and incompetent by the terms of the affidavit, by which the defender swore to the amount of the debt in reference to which the security was required, and the extent of the security which was in consequence insisted for, as the condition of the warrant of imprisonment not being granted or continued in force.

“The defender's affidavit does not appear to have been different in form from the affidavits usually employed in such cases, where the debt consists not only of sums already due and exigible, but of sums which, by the contract, decree, or other legal title, are still to fall due at future terms. He swore, that the pursuer was indebted to him in the sum of £122, 7s. for the rents due at Martinmas preceding, as also in the sum of £111, as the rent to become due at Martinmas 1835, ‘the said term being first come and bygone,' and in the same sum at each term of Martinmas during the fifteen years of the lease still to run, ‘the said terms and years being firet come and bygone.’ That the pursuer was, both in fact and in law, under an obligation of debt to the defender in these terms, appears to us to be indisputable. The rents corresponding to the future years were not yet payable: But the obligation to pay them when the years and terms should be come and bygone, was as clear as the obligation to pay the rent which was already due.

“If the pursuer had not formed the design of leaving the country, and so passing from under the jurisdiction of the courts of Scotland, the landlord would have had no right, by virtue of the contract of lease simply, to obtain any security either for payment of the rents to become due, or that the pursuer should answer to any action to be brought for them. If he fell in arrear of his rent, the law gave certain remedies; and one of these is, to require security for five years' rents, or that the tenant shall remove from the farm. But this supposes that the tenant is remaining under the laws of this country, ready to answer to any just demand, and to be subjected in damages for any breach of the contract.

The law of Scotland is particularly favourable to debtors in various respects. No man can be subjected to arrest or imprisonment even for a debt fully payable and legally constituted, without some warning. No man can be arrested even for a debt stated to be fully due, until it has been legally constituted by the decree of a court, or by some registered document equivalent to a decree. And, in general, no man can be arrested or imprisoned at all on account of a future or contingent debt not payable at the time, if he be resident in the country, and there be no reasonable ground to believe that he intends to leave it, and thereby to disappoint his creditor. But, in all these cases, the law has made a distinction, reasonable and just in itself, and fully settled by long practice and authority, where the creditor has reasonable ground to know or believe, that it is the intention of his debtor to fly the country. In that case, although he has obtained no letters of horning, and has given no charge; though his debt is not yet constituted by decree, and no action may have been raised for constituting it; he may apply by petition to any competent judge, for that interposition of the law, which is understood by a warrant for apprehending the party as in meditatione fugæ. And it appears to be so clearly settled by the series of authorities quoted in the case for Mr Ferrier, that such an application is equally competent, where the debt consists of engagements by contract, decree, or other legal form of obligation, which are only to become due at a future time, or even contingently, if the personal liability to pay when the time shall have arrived be in itself clear, that we think it unnecessary to enter into any detailed consideration of that point, being satisfied that it must be held to be an established part of the law.

“The principle of this exception from the ordinary rules determining the rights of debtors and creditors, is obvious and simple. The fact being assumed, that the debtor means to leave the country permanently, he is still not required to pay even a present debt, till all the ordinary process of action and diligence shall have been followed forth. Neither is he required to pay a debt to fall due hereafter, before the term when it may be legally exacted shall have arrived. Nor is he, in any one of these cases, required even to find security that they shall be paid, when legally exigible and duly constituted. All that the creditor can demand is, that the debtor Khali find security that he shall be present in the country to answer to the action or diligence of the creditor, to be in proper time exhibited against him. The plain meaning of the law is, that the creditor in whose favour the obligations have been undertaken, shall either have the debtor himself, or a sufficient surety, resident within the jurisdiction, to answer for the fulfilment of them.

“And it may be observed, that if this principle be reasonable in other cases, it seems to be particularly so in the case of obligations arising out of the contract of lease. For that is a contract, which always supposes that the tenant shall continue resident upon the lands in Scotland; and therefore the very determination to leave the country, while the years of the lease are current, implies the purpose of violating the obligations undertaken, and avoiding the process or diligence by which implement of them may be compelled.

“It is very true, that, in such a case, the land which is the subject of the contract remains; and the landlord may have remedies, by which the evil of the breach of contract may be lessened. But though a tenant, after making all he can of the first years of the lease, May choose deliberately to throw the farm back on the landlord, and fly from the diligence to which he would be subject, it is not the less true, that he is under the legal obligation to hold the lands, and to pay the rent, in all the years of the subsistence of the contract. If, in consequence of his declared purpose to depart, he is called upon by the force of the ordinary warrant to find security that he shall be sisted in judicio to answer for fulfilment of his engagements, it may be, that the security required may sometimes appear to be great or even severe. That may happen equally, where a debt sworn to be already exigible is of largo amount, though not yet constituted; and it may be even of a more oppressive character prima facie, where the constitution of the debt is of doubtful result. Cases accordingly may exist, where, though the application for arresting the debtor as in meditatione fugæ must be regarded as perfectly regular, competent, and legal, there may be ground for holding that it has been oppressively used or insisted in. But it is evident to us, that the difficulty of finding security, which may arise equally from the amount of the debt, or from the nature of the contract, cannot alter the question as to the competency or legality of the application itself.

“It is not necessary for us to consider the means of relief which a person becoming security in such a case might have. It is evident, however, that there must be such means. And it seems to us, that it is this consideration which has created the doubt in the present question. Though the landlord obtains the security, he may use the other remedies which the law gives him; and, when he does so, if the cautioner is called upon for payment of the rents as they become due, he will be entitled to the benefit of the operation of those remedies. But this is no more than what may occur in many other cases. The creditor may find other means of making his debt effectual, besides the personal obligation of his debtor. But the possibility of his having other remedies will not alter the legal competency of the application, for security that the debtor himself about to fly the country shall be present to answer for it.

“The question which remains is, whether the application in the present case was incompetent and contrary to law, on the single ground that the security demanded was to the amount of the rents already due, or which should become due. To speak correctly, this is not precisely the state of the matter. The security asked was only, that the pursuer should be sisted in judicio, to answer for payment of those rents when they should successively become due. If this could be done (and it was wholly in the pursuer's own will), the cautioner's undertaking would be satisfied, and he would not be liable to any further demand. But if the debtor cannot be sisted, because he wilfully absents himself from the country, and the consequence is, that the cautioner must suffer the penalty by paying the debt in place of him, if it be not otherwise satisfied, this only arises from the nature of the case, and it is a result which at once shows, that the extraordinary process under which the caution was obtained was necessary according to the principle of the law. And the object being simply to secure such responsibility in default of the debtor himself, wo do not see that it can be held to be either incompetent or contrary to law, to make the application in such terms, according to the amount of the indisputable obligations of the lease, qualified always with the proviso, that the term of payment of each year's rent must be first come and bygone. When we find it to be clearly settled, that such a demand of security may be legally made in cases of aliment, annuity, instalments of a price, and the like, and even of contingent debts, to the amount of sums which must or may fall due de futuro, we are unable to discover any principle, on which a distinction can be made in the case of a lease, to the effect of holding that such an application as that which was made in this case is irregular, incompetent, and illegal.

“With the greatest respect, therefore, for the opinion of the eminent Judge who presided at the trial, we are under the necessity of delivering our judgment, that the exception ought to be sustained, and a new trial granted.”

Lord Cuninghame.—“I am of opinion that the direction given by the Judge to the Jury, in the present case, was correct in point of law, and that the exception ought to be disallowed. I have come to this conclusion on the following grounds:—

“I. The specialties of this case justified the Charge on the point excepted to, independent altogether of the rule that may be applicable to claims of landlords generally under leases.

“Before the Charge was delivered by the Court, it was proved that the defender had written to his agent, that ‘a suit should be raised against M'Gill for the rents during the lease, not only of his possession, but for the whole rents, and then apprehended till he should find caution.’

“In following out the proceeding thus resolved on, the defender made affidavit for the whole rents during the fifteen subsequent years of the lease as ‘ Debts,’ no doubt adding the words, ‘the said terms and years to be first come and bygone;' and he gave in a petition to the Sheriff, craving that M'Gill should be imprisoned within the tolbooth of Campbelton ‘till he found sufficient caution to the amount of said debts, acted in your Lordships’ court-books de judicio sisti, in any action for payment of said debts already brought or to be brought against him’—‘within six months,' &c. &c. And upon that application, the pursuer, after a short examination, was committed prisoner to the tolbooth of Campbeltown till he found caution to the full amount craved.

“It was also proved on the trial (see evidence of Alexander M'Millan—Bill, p. 9, and his missive, App. p. 12), that before any of those proceedings took place, the defender was in possession of an offer to the extent of £95 per annum for the farm; which rent the pursuer refused; and he afterwards let the farm for £100. Evidence of Peter Gilkison—Bill, p. 10.

“The defender's real interest, therefore, in the enforcement of the pursuer's future and contingent obligations under this lease, did not exceed £200, while it has been shown that he demanded caution to the amount of the full rent for the whole years of the lease— i.e. for a gross sum exceeding £1100 sterling.

“Further, it was proved on the trial, and before the Judge charged the Jury, that M'Gill and his co-tenants, at the period of his apprehension, had stock on the farm to the amount of £183 (evidence of Peter Gilkison—Bill, p. 10), as to which it was proved, that the pursuer, in his examination before the Sheriff (App. to Bill, p. 16), judicially made this statement:—‘That the declarant is willing, so far as he is concerned, to allow the joint stock on the farm to remain on it, in security of the rent bygone and to come.’

“Notwithstanding this, the pursuer having been unable, as may be supposed, to find caution to the full amount required for appearing in an action at the distance of six months, was detained two months in prison;—after which he was released by the supreme Court, by having a bill of suspension passed, on finding caution to a far lower amount.

“It humbly appears to me that our law would be very defective indeed, and might be converted into an engine of grievous oppression, if such a warrant could, under such circumstances, be enforced against a party in the condition of the pursuer, without redress. The fault or error in the defender lay, not in bringing, or stating that he intended to commence an action against the tenant for implement of a lease of fifteen years, but in demanding caution to the amount of fifteen years' full rent, for the tenant's appearance in such action. The defender overstated very largely the amount of the caution, which any landlord was entitled to demand in a case of this description; and the facts known to himself or his agents showed irrefragably that he had no such interest at issue in the pursuer's possession, as to justify or entitle him to demand caution to the amount that he did, and which alone occasioned the pursuer's long detention in prison.

“This, however, as I understand the note of the Lord Justice-Clerk's speech, was the sole import and extent of the charge excepted to. His Lordship gave it as his opinion, that when the landlord demanded caution ‘to the amount of the said debts,' including therein the prospective rents for fifteen years, that was an illegal demand. It was not stated by the Judge, that the landlord ought to have confined his demand merely to the amount of the past rents, or that he had no claim, or ground of action, in respect of future rents; but simply, that a demand of caution ‘to the full amount of the whole future rents for fifteen years’ was illegal. In that opinion I concur; for I think the principle or measure according to which the caution was demanded, was oppressive, and enormously beyond the fair interest of the landlord in the premises, and so illegal and contrary to every law or authority by which such a question can be determined.

“Such a demand, as I conceive, should have been restricted by the Judge Ordinary to something near the real interest of the defender in the matter libelled on, as it was by this Court when the case was discussed in the bill of suspension. But the caution not having been restricted, and the pursuer having been deprived of his personal liberty for upwards of two months, in consequence of this exaggerated demand, the warrant was executed periculo petentis, and the defender must be liable in reparation.

“II. While it thus appears, that the present case is a clear one on the special circumstances brought out in the evidence, I am further of opinion that it would be very questionable if a landlord could in any case of lease, safely and legally demand caution to the full amount of the prospective rents, from any tenant.

“The practice of apprehending foreigners as in meditatione fugæ, has grown up in Scotland from long usage sanctioned by our courts, and not from any special law or statute authorizing the practice. At first such warrants appear to have been confined either to claims already liquid and constituted, for payment of which immediate diligence could be used, or to other claims immediately exigible, and; which in fact were in the course of constitution. Accordingly, Lord Stair says, ‘Captions are also granted without a preceding charge, by the Lords, upon special occasions, as if parties be suspected to leave the country, and have no visible estate in it,'

“It is only of comparatively recent date, that such applications were supposed to be competent, for future or contingent debts of any description. The first case on record where this question is reported as having been tried, was that of Reid, 10th July, 1823, when a husband, against whom his wife held a decree for periodical and future aliment, was decerned to find caution on a meditatio fugæ warrant, to implement the decree. A similar proceeding has also been repeatedly adopted as to claims of aliment for bastard children; and the Court is said to have ex-pressed an opinion to the some effect as to annuities payable by a defender in the case of Cameron. But these cases do not solve the question as to claims for future rent, under a lease for a term of years,

“When the obligant on a personal obligation for aliment, or for an annuity, is about to escape from the country, there is no measure or ratio on which the creditor can be required to accept of caution for less than the full amount of his claim; because in every possible event the full amount of the aliment or annuity, as the case may be, will be due to the creditor when the terms of payment arrive; and ex hypothesi, he holds nothing in his hand by which the future or contingent debt can be diminished. But the case is totally different in the case of leases. In no conceivable case can a debt to the full amount of the whole future rents be due, if the obligant is unwilling or unable to fulfil the contract. On the contrary, if the farm continues possessed by the tenant, the landlord has no claim till each term's rent falls due, and in that case he cannot ask any warrant at all against the tenant. Again, if the farm be abandoned, the landlord has the security of his land, for the satisfaction pro tanto of any future rent; and therefore it would be vexatious in any landlord to ask, and most oppressive in any court of law or equity to grant a warrant to imprison any debtor till he found caution for a long series of future rents. The gross amount of those rents can never, in any view, be the measure of the security exigible by the landlord in reference to his future and contingent claims; and therefore a demand for caution to the amount of the whole future rents accumulated, appears to me to be more than any landlord has a legal title to demand.

“As the remedy, however, of a summary warrant, in cases of alleged fugn, is an extraordinary interposition of the law under our system, the creditor's proceedings in resorting to it are, in my opinion, to be most strictly interpreted; and if a party goes one iota beyond the clear necessity of the case, he is liable in reparation. This proceeding having been introduced into our law, without statute, there is often no antecedent authority to be quoted, for establishing what is, or is not an excess of diligence on the part of the creditor. This must be determined by the circumstances of each particular case, as the various decisions subjecting creditors for an abuse of the forms of law in similar cases, demonstrate.

“But it is obvious that there cannot be a greater abuse of this privilege of summary arrest, than taking out a warrant under an exorbitant demand of caution. For a party alleging that he has a claim against another about to go abroad, is entitled to make the application for caution, even though the debtor is not leaving the country with any view to defraud his creditor or to evade his diligence. His mere departure from the country is sufficient, as determined in the case of Wright, where it was found that ‘a warrant was competent against a party who had come to this country from America, and meant to return thither in order to prosecute his business as a factor,' 1 Hence it would be most hazardous to lay it down, that a warrant is legal, in which caution to an exaggerated and unnecessary extent is demanded from the defender under pain of imprisonment.

_________________ Footnote _________________

1 Fac. Coll. Feb. 6, 1789; Morr. p. 8553.

“Applying these views to the present case, let it be supposed that there had been a formal lease here, with a clause of registration on which diligence might have been termly used for the whole rents under the lease as they fell due: in that case, no action of constitution would have been necessary, as in the present instance; but the proprietor might have at once proceeded to apprehend the tenant upon the constituted obligations of his lease, if going abroad; and, had he done so, would any Judge have found the tenant bound to find caution de judicio sisti, instantly to the full amount of the rents during all the future years of the lease, without regard to the consideration, that that could never, in any event, be the loss or damage of the landlord? It is supposed that, any such doctrine would be not a little severe upon the whole tenantry of the country, and would be in itself alike novel, and contrary to the universal understanding on the subject.

“But while there is no precedent or authority in our law supporting a demand for caution to this unreasonable and unnecessary amount on the part of the proprietors, it is the duty of the Court now, as our predecessors before us have done, to settle the law in each emerging case, according to these principles of law and equity, on which creditors have been previously allowed to resort to these summary arrests in our practice. Accordingly, when Mr Bell states it as the result of our decisions on this head, that ‘the meditatione fugæ warrant is not a punishment for absence, but. an instrument of justice, and a method of preventing loss to the creditor,' 2 it is apprehended, that the sanction of such warrants to any farther extent than a pursuer's hazard of loss, would, both in actions on leases and various other cases, lead to a very gross and oppressive abuse of these warrants. It would go to this-that a party might always demand caution to the full extent of every future and contingent claim, for which he might lawfully conclude, in any action about to be commenced by him. By that rule, if any pursuer brought an action against a party going abroad, concluding for declarator and adjudication of an estate held by the latter, he might arrest him, and hold him to bail for the full value of the estate, though of course the most valuable part of the subject concluded for must always remain in solo, to be vindicated by the right owner.

_________________ Footnote _________________

2 2 Bell's Com. 562.

“The summary apprehension of a defender, in order to force either payment or caution to such amount, appears to be peculiarly repugnant to the principles of the law of Scotland, which allows no arrest on mesne process, and which, in general, permits no party to be apprehended for any debt, till it is past due, and also till a charge for payment is given and expired. The arrests permitted on other occasions, in our practice, form exceptions from the general rule; and the party applying for them must show, at his peril, that they were not demanded to an extent or amount beyond what the necessity of the case, and his legitimate interest in the future fulfilment of the obligation, absolutely required.

“While there is no precedent or authority to support such a warrant in our own law, it seems (as to the amount of the caution demanded) to be contrary to the principles of every other system. It is not known whether a party can by any process be apprehended and incarcerated in England, till he find caution for future payments, not due, by the terms of the obligation, for a series of years afterwards; but the English case of Austin, as thus abridged in late reports, seems to have proceeded on a principle, which, when applied to the present case, is sufficient to demonstrate the illegality of the warrant on which the pursuer in this instance was detained in jail:—‘An arrest for the total amount on one side, where there have been mutual dealings, without deducting sums known to be due on the other, is malicious and without probable cause.’ Austin, 4 Dowl, and Ry. Rep. 653.

“That was obviously a different case from the present in its details, but the principle of the decision seems clearly applicable to this question.

“It has been argued that the Judge in the present instance should have left the amount of the caution demanded by the defender, along with the other circumstances of the case, to be judged of by the jury. It appears, however, that the Judge left as much on this matter to the jury as it was proper to do. He did not prescribe to the jury what precise amount of caution should have been required; as the jury fell to judge of that from the facts. But he said at all events, that the demand for caution to the full amount of fifteen years’ rent was contrary to law. Had the question related to a diligence for payment of debts past due, the judge would have been bound to tell the jury that an apprehension for more than was due was contrary to law. In like manner, where the claim related to contingent claims, when caution was demanded for greatly more than was necessary completely to secure the claimant, it was equally the duty of the Judge to declare, that such a demand was unwarranted in law. The question put to the jury here was, ‘Whether the pursuer was wrongfully apprehended or not?' In such a case, it was certainly the duty of the Judge to say, whether the warrant, as applied for and granted, for the large amount of caution specified, was legal or not.

“On the whole, therefore, viewing the present as a case in which a creditor demanded immediate caution from his debtor to the amount of upwards of £1000, and detained him in prison for two months to enforce such caution, when not only his present, but his contingent interest in the enforcement of the lease, fell palpably and incontestably very far below that sum, and in fact was under £200 (as established on evidence), I think the warrant as applied for and enforced, was contrary to law; and on these grounds, I am clearly of opinion that the exception should be disallowed.”

The cause having been this day put out for advising,

The Court, retaining respectively their original opinions, “in respect of the opinion of the consulted Judges, allowed the Bill of Exceptions.” *

_________________ Footnote _________________

* On the following day (10th March) the Court applied the verdict of 17th March last as to the defenders Colville and M'Lean, assoilzing them with expenses.

Solicitors: E. and A. M'Millan, W.S.— W. and J. B. Douglas, W.S—Agents.

SS 16 SS 934 1838


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