Scottish Court of Session Decisions

On 31st August 1897 the trustees of the deceased Henry M'Intosh (the father of the pursuer of the present action) let a piano on hire to Mrs Helen M. Turnbull, who resided in a house rented by her from Miss Mary Potts, the defender in the present action. On 5th March 1900 Miss Mary Potts presented a petition to the Sheriff of the Lothians and Peebles for sequestration of Mrs Turnbull's effects in security and for payment of her rent for the year ending Whitsunday 1900 and obtained a warrant to inventory and serve. In the inventory was included the piano. Subsequently, on 13th March 1900 and 25th January 1901, warrants to sell were obtained, but as Mrs Turnbull continued to pay her rent by instalments the warrants were never carried into effect. On 3rd May 1900 the hirer's agent wrote to the defender's agent in the following terms:—“I give you formal notice that the piano is our property. … If it should be ultimately necessary for you to realise the effects will you kindly communicate with us, as we would he willing to come to an arrangement in the event of the tenant's own effects not being sufficient to cover your claim.”

On 20th July 1904 Miss Mary Potts presented another petition for the sequestration of Mrs Turnbull's effects for arrears of rent and obtained a warrant to sell. The piano, which had all along remained in the house, was again included in the inventory, and a correspondence took place between the agents of the hirer and the agents of Miss Potts, in which the former objected to the inclusion of the piano in the inventory but no appearance was entered by them in the sequestration. The piano was thereafter sold along with Mrs Turnbull's other effects.

On December 1904 Henry W.M'Intosh brought this action in the Sheriff Court at Edinburgh against Miss Mary Potts in which he sued her for £33 sterling, being the value of the piano. He averred, inter alia—“(Cond. 8) After sundry procedure the defender obtained a warrant of sale under said sequestration “to sell so much of the sequestrated effects as will pay' the two rents in question, being £70, and expenses. Under this warrant effects belonging to the. said Mrs Turnbull, amounting in value to £142, 14s. 6d., being more than double the rents for which the said process of sequestration was obtained, were sold. This sale was greatly in excess of what the warrant authorised, yet notwithstanding thereof defender wrongfully and illegally sold the pursuer's said piano over and above Mrs Turnbull's said effects, the value of which is at least £33, and for which value the defender is liable to the pursuers. (Cond. 9) It was the defender's duty to have, in any event, sold her tenant's effects before touching the pursuer's piano, and to have stopped the sale as soon as the effects sold were reasonably sufficient to cover the sums in the warrant, and the sale so far as regards the pursuer's piano was, to the knowledge of the defender, wholly illegal and without warrant or justification of any kind.”

The pursuer also referred to the roup roll, which showed that the whole effects realised £170, 15s., and that £92, 19s. was realised

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before the piano was put up for sale. The piano realised £17, 6s. 6d. The expenses of sale amounted to £20, 13s. 7d., the taxes due to £10, 13s. 5d., and the rent due to the defender with interest and agent's expenses to £80, 2s. 2d.

The pursuer pleaded, inter alia—“(2) Esto that the piano was properly included in the sequestration for the rents which became due (1) at Martinmas 1903, and (2) at Whitsunday 1904, and these rents having been more than met by the proceeds of the sale of the effects belonging to the defender's tenant Mrs Turnbull, and the defender being aware that the instrument was the property of the pursuers, said sale was illegal and unwarrantable, and the defender is liable for the value of the instrument.”

The defender pleaded, inter alia—“(2) The pursuer's averments are irrelevant.”

The Sheriff-Substitute pronounced the following interlocutor:—“Sustains the second plea-in-law for the defender Miss Potts, and therefore dismisses the action as irrelevant: Finds the defender Miss Potts entitled to expenses,” &c.

The pursuer appealed, and argued—It was not disputed that the piano fell under the landlord's hypothec, and that in different circumstances the landlord might have been entitled to sell it; but in the circumstances disclosed in the present case her action had been illegal and oppressive, because (1) knowing it to be the property of a third party she had exposed it for sale at a time when, as the roup roll showed, the effects already sold more than covered the debt and reasonable expenses, and when consequently her warrant was exhausted; (2) she had sold the piano before she had exhausted the effects belonging to the tenant. A warrant to sell must be used in a reasonable manner, and knowingly and unnecessarily to sell the property of a third party was not a reasonable use— Robertson v. Galbraith, July 16, 1857, 19 D. 1016.

Argued for the defender and respondent—The warrant was not as a matter of fact exhausted when the piano was exposed, the roup roll showing that the amount of the debt and expenses of sale and taxes with a reasonable margin had not been recovered at the time. As to the order in which the articles had been exposed for sale, the defender was entitled to expose them as she pleased, as the pursuer had made no application to the Sheriff or the judge of the roup to have the piano reserved until the end of the sale. Upon this branch of his case the pursuer was barred personali exceptione.