Lieutenant Colonel John Gordon of Cluny 1 John Graham and James Graham [1841] UKHL 2_Rob_251

UKHL
Lieutenant Colonel John Gordon of Cluny 1 John Graham and James Graham
[1841] UKHL 2_Rob_251 · 1837-08-12

Judge at Trial, The Lord President .

Counsel: [ Sir W. Follett — James Anderson .] [ Lord Advocate (Rutherfurd) — Biggs Andrews .]Subject_ Bill of Exceptions — Landlord and Tenant — Sequestration — Assignation. —could not travel out of the exception. The circumstances were exclusively for the consideration of the jury.(1.) At the trial of an issue, —Whether the defender wrongfully failed to relieve the pursuers crop and stock from sequestration, by which it was then attached? —the Judge directed the jury in point of law, that “the tenders of the arrears of rent having been made by the pursuers agent, in terms of his letters of the 18th and 24th of May 1838, and the sequestration not having been withdrawn until the 28th of that month, the said sequestration ought to have been withdrawn after these offers, and more especially after that of the 24th of May; and that the defender was in law responsible to the pursuers for not withdrawing the sequestration, quoad the sums contained in these tenders.” The defender excepted to this direction: The Court of Session, without concurring in the opinion in point of law so stated to the jury, disallowed the bill of exceptions on the ground that, in the special circumstances of the case, the direction was right. Judgment of the Court of Session, disallowing the bill of exceptions, reversed, and cause remitted back, to allow the bill of exceptions and grant a new trial.(2.) Per Lord chancellor. —The only matter raised by the exception was the abstract question of law, and the Court

Footnote

1 Fac. Coll., 2d and 9th Feb. 1841.

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(3.) Question raised, —Whether a landlord is bound to assign to the agent of his tenant, whose crop was under sequestration, his right of hypothec, on the agent tendering payment of the rent?Jury Cause.Statement.The appellant let part of his lands in Mid Lothian to the respondents upon a nineteen years tack, the entry being at November 1832. The lease contained a stipulation as to the houses and fences being put in a tenantable condition by the appellant.At 12th August 1837 certain arrears of rent were due by the respondents, to secure payment of which, and of the rent from Martinmas 1836 to Martinmas 1837, payable at Candlemas and Lammas 1838, the appellant then applied to the sheriff for sequestration of the respondents crop and stock. Sequestration was awarded.Some correspondence afterwards took place betwixt the parties and their agents, and among others a letter, dated 28th August 1837, was written by Mr. John Gray, the appellant's agent, to Mr. Maurice Lothian, the agent for the respondents, in these terms:—person who pays the rent and finds caution, and then the roup may proceed. I shall expect your answer in the course of today, as Captain Duguid proposes to leave town this evening.”
“Captain Duguid, factor for Colonel Gordon, came to town from Aberdeenshire on Saturday night, and he is now with me. Captain Duguid does not approve of your proposal on the part of Messrs. Grahams, and he cannot consent to the sale going on as advertised; but he is quite willing to accept of your guarantee to pay the arrears of rent, on caution being also found to pay the current year's rent when due, and Colonel Gordon is quite willing to grant an assignation to the act of sequestration, either to you or to any other

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Payments to account of the rent were soon after made. On the 14th May 1838 the Sheriff, upon the application of the appellant, granted warrant to sell sufficient to pay a balance of rent due at Candlemas preceding; and on the 16th an advertisement was issued of a sale of the respondents effects, to take place on the 23d May 1838. Upon the 18th May 1838, Mr. Lothian wrote to Mr. Gray in these terms:—
“Dear Sir, —Stop the roup in Gordon v. Grahams ; and, since we can't do better, I will advance the arrears and expenses myself, on your client granting an assignation, or giving me an obligation to grant one at my expense. My assignation not to compete with the landlord's right for the balance of the year's rent, of which the above arrears form a part. Yours, &c.”

Mr. Gray answered the above on the 23d, thus : —

incurred by them, and of which I handed you a copy.
“I mentioned to you that I had sent a copy of the state and expenses which I handed you to Colonel Gordon; and on calling upon him, he stated that there was a larger balance of rent due than was contained in the state; for that, by the lease the tenants had become bound to pay 6 l. per acre for each acre they cropped on the farm different from the stipulations in the lease, and that the tenants had miscropped several acres in the year 1837, as could be shown by a measurement of Mr. Knox; and the tenants were bound by the lease to pay 6 l . per acre of additional rent for each of these acres; and that he also looked to the tenants for payment of all the extrajudicial expense

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I wrote Colonel Gordon that I would make a demand upon you for the additional rent, and for payment of the extrajudicial expenses; and if refused, that it appeared to me necessary to present a supplementary petition of sequestration to the sheriff for the foresaid additional rent, in terms of the lease, and also to claim the extrajudicial expenses from your clients. They have a double of the lease, which you can get from them. In the meanwhile, I annex a copy of the clause in the lease regarding the additional rent. I shall be glad to hear from you in answer.”

On the 24th May 1838 Mr. Lothian wrote to Mr. Gray thus:—

“I have received your extraordinary letter of yesterday, and sent it to Messrs. Graham for information to answer it. In the meantime I have tendered you the whole money for which you have taken warrant to roup, and you declined it, only taking my obligation to pay it. I have now to repeat that I am ready to pay that money to you, or your client Lieutenant Colonel Gordon, on a receipt acknowledging that the money is paid by me, and binding your client to grant to me, at my expense, an assignation in the terms mentioned in my said obligation, of which (as I wrote it in your chambers) I have no copy. I will thank you to send me a copy of it. I have only to add, that if the money above referred to be not accepted by you, I will lodge a minute in my own name in the existing process of sequestration, and consign the money with the Clerk of Court at your client's expense.”

Upon the 28th May 1838 the appellant accepted

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“Edinburgh, 28th May 1838. —Received from Maurice Lothian, Esquire, solicitor, 64 l . 10 s 3 d. , with 1 l . 0 s . of 3 d . of interest thereon, being the balance of rent of the farm of Egypt, payable at Candlemas last, and interest thereon, for which a warrant to roup was taken against Messrs. Graham, the tenants, in a process of sequestration at my instance, reserving any further claims competent to me for additional rent on account of part of the lands, being, as I am informed, cropped differently from the stipulations of the lease, and for all expenses incurred by me in regard to the recovery of the rents for which said sequestration was used, and reserving to the tenants their defences against such claims; and I engage to grant to Mr. Lothian, at his expense, an assignation of said sums now paid to me, and of the proceedings at my instance under the said sequestration, to the end he may operate his payment from Messrs. Graham, but so as not to compete with any claims competent to me as landlord.

(Signed) John Gordon. ”

On the 31st May 1838 the respondents raised an action of damages against the appellant, founding on his alleged failure to implement a condition in the lease as to putting the houses and fences in proper repair, as well as on the proceedings in the sequestration, and concluding, among other things, for 500 l . as damages for the loss they had sustained from the conduct of the appellant, “and from his having refused or delayed to perform the obligations incumbent upon him, and 66 in consequence of the oppressive and unjustifiable measures adopted by him.”

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The parties went to trial on the following issues:—

“It being admitted that under the lease, of which No.3. of process is a copy, the pursuers became tenants of the farm of Egypt, the property of the defender, for the period of 19 years, from the 22d day of November 1832:
Whether the defender wrongfully failed to put the houses and fences on said farm in tenantable and fencible condition, in terms of the said lease, to the loss, injury, and damage of the pursuers?Whether, on or about the 12th day of August 1837, the defender obtained from the sheriff of Edinburgh a sequestration of all or any part of the crop and stock of the pursuers on the said farm; and whether, on or about the 23d of May 1838, the defender wrongfully failed to relieve the pursuers said crop and stock from the said sequestration, to the loss, injury, and damage of the pursuers?”

The following verdict was returned: —

“At Edinburgh, the 13th day of July, 1840 years, before the Right Honourable the Lord President, compeared the said pursuers and the said defender, by their respective counsel and agents, and a jury having been impannelled and sworn to try the said issues between the said parties, say, upon their oath, that in respect of the matters proven before them, they find for the pursuers on both issues, and assess the damages at 475 l .”
The following exceptions were taken by the counsel for the appellant to the direction of the Lord President at the trial:
“First exception. — That thereafter the said Lord President, in addressing the jury, declined and

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Second exception.—And that the said Lord President did direct the said jury, in point of law, as to the second issue, that tenders of the arrears of rent having been made by Mr. Maurice Lothian, in terms of his letters of the 18th and 24th of May 1838; and the sequestration not having been withdrawn until the 28th of that month, the said sequestration ought to have been withdrawn after these offers, and more especially after that of the 24th of May; and that the defender was in law responsible to the pursuer for not withdrawing the sequestration, quoad the sums contained in these tenders.”The bill of exceptions having been discussed before the judges of the First Division, their Lordships pronounced the following interlocutors:Judgment of Court, 2d Feb. 1841.
“The Lords having heard counsel for the parties, disallow this bill of exceptions; find the defender liable to the pursuers in the expenses incurred by them in the discussion on the bill of exceptions, and remit to the auditor to tax the account thereof, and to report.
Judgment of Court, 9th Feb. 1841.The Lords apply the verdict of the jury, and decern ad interim for the sum of 475 l . found due by the jury; further find the pursuers entitled to the expenses of the jury trial, remit to the auditor to tax the same and to report; and remit the case to the

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The defender appealed.Appellant's Argument.Appellant. —Of the two exceptions, it would be sufficient, for the present, to consider the one applicable to the second issue.Instead of submitting to the jury the question of fact, whether the appellant had wrongfully failed to relieve the respondents of the sequestration, the judge had directed the jury, in point of law, that the appellant was bound, after the two letters of the 18th and 24th May, to withdraw the sequestration. Now, in the first place, the obligation to withdraw the sequestration was not raised by the terms of the issue; and the effect of the misdirection cannot be got over, as proposed by the Court 1 , by assuming that the jury understood the term “withdraw” to mean in this instance the same as “relieve.” Such a mode of supporting a direction had been shown to be wrong, by the reversal, in this House, in the Cromarty case ( Horne v. M'kenzie 2 ), where the Court were satisfied, upon the explanation of the presiding judge, that the term “prevalence” used by him to the jury was meant as equivalent to “predominance.” But, secondly, the sequestration was not withdrawn on the 28th; it still subsisted for the then current term's rent. Further, the landlord was not required by Mr. Lothian, in the two letters referred to, to “withdraw” the sequestration;

Footnote

1 See Lord Mackenzie's opinion in rep. in Fac. Coll.3 M'L. & Rob. App. 977.

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Respondents Argument.Respondents. —This exception proceeds upon the most hypercritical construction of a very obvious direction upon a simple enough point. The Lord President

Footnote

1 Tod v. Montgomerie , 10th February 1743, Mor. 6,228; Kilk. 273; Hunter, on Landlord and Tenant, 701.

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[ Lord Chancellor .—But suppose so; should it not have been a question for the jury, whether the landlord was bound or had come under an obligation to relieve? The letter of 28th August is not founded on by the Lord President.] All this was before the jury, upon the facts proved in evidence or admitted.[ Lord Chancellor .—The jury could not so understand it; certainly I do not so understand it. There is no

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The Lord Advocate prayed the judgment of the House as to the first exception.Lord Chancellor . — Sir William Follett, have you any thing to address to the House upon the first exception? The House will not call for any reply upon the second exception.Sir William Follett, —The appellant has no interest in having a judgment on the first exception. The verdict being erroneous in respect of the misdirection on the second issue, the judgment appealed against must be entirely reversed, and there must be a new trial on both issues.Ld. Chancellor's Speech.Lord Chancellor .—My Lords, this case is comprised within a very small compass. The respondents were tenants of the appellant under a lease. The rent having fallen into arrear, the appellant applied to the o sheriff, and obtained a sequestration of the crop and stocking on the farm. On the 18th of May 1838 Mr. Lothian, the agent for the respondents, wrote this letter to Mr. Gray, the agent for the appellant:
“Stop the roup in Gordon v. Grahams ; and, since we can't do better, I will advance the arrears and expenses myself, on your client granting me an assignation, or giving me an obligation to grant one at my expense. My assignation not to compete with the landlord's right for the balance of the year's rent, of which the above arrears form a part.”
The meaning of this proposal is, not that the tenants should pay the rent, but that Lothian, the agent, should pay the amount of the

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Then comes this letter of the 24th of May, from Mr. Lothian to Mr. Gray:
“I have received your extraordinary letter of yesterday, and sent it to Messrs. Graham for information to answer it. In the meantime I have tendered you the whole money for which you have taken warrant to roup, and you declined it, only taking my obligation to pay it. I have now to repeat I am ready to pay that money to you, or your client Lieutenant Colonel Gordon, on a receipt acknowledging that the money is paid by me, and binding your client to grant to me, at my expense, an assignation in the terms mentioned in my said obligation, of which, as I wrote it in your chambers, I have no copy. I will thank you to send me a copy of it. I have only to add, that if the money above referred to be not accepted by you, I will lodge a minute in my own name in the existing process of sequestration, and consign the money with the Clerk of Court at your client's expense.”
It does not appear that any answer was written to this letter, but an arrangement seems to have been made by the 28th of May, on which day the money was paid, and a receipt granted by Colonel Gordon (in the terms quoted) containing an obligation to assign the sequestration to a certain effect.

This having become the subject of a suit in the

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On the trial of the issues the Lord President, who presided at the trial (as it appears from the second exception), directed the jury in these terms:
“The Lord President did direct the said jury, in point of law, as to the second issue, that tenders of the arrears of rent having been made by Mr. Maurice Lothian,, in terms of his letters of the 18th and 24th of May 1838, and the sequestration not having been withdrawn until the 28th of that month, the said sequestration ought to have been withdrawn after these offers, and more especially after that of the 24th of May; and that the defender was, in law, responsible to the pursuer for not withdrawing the sequestration, quoad the sums contained in these tenders.”

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No one can mistake the effect of his language. It contains a distinct exposition of that which is intended to be laid down by the Lord President, in point of law, that the tender contained in the two letters of the 18th and 24th of May imposed an obligation in law on the landlord to withdraw the sequestration; that the landlord, having a sequestration against the tenants, on any one saying, “I will pay the arrears of rent, provided you will grant to me an assignation of the sequestration,” the landlord was bound, by the law of Scotland, to accept that offer. If that be so, the opinion expressed by the learned judge who presided would be correct; but if otherwise, it would be exceptionable. It does not appear to me that the language of the letter is open to any ambiguity or doubt, but that it proceeds to express the only terms on which the agent of the respondent, Mr. Lothian, required the sequestration to be withdrawn; there was no payment of rent qua rent, but an offer to pay the same sum on the sequestration being assigned. Whether the word “withdraw”had a different meaning from the word “relieve” is immaterial, with reference to the opinion delivered to the jury by the learned judge, for the bill of exceptions must stand or fall by the legal effect of that which was laid down at the trial. It will not do to support the direction of the learned judge on other grounds or other facts, for the learned judge tells the jury that the effect of those two letters amounts in law to an obligation on the landlord to comply with this requirement of the letters.But when the bill of exceptions came on for discussion in the Court of Session, that Court does not profess to support the law as propounded in the Lord President's

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Judgment.The House of Lords ordered and adjudged, That the said interlocutors complained of in the said appeal be and the same are hereby reversed: And it is declared, That the bill of exceptions ought to be allowed in respect of the second exception stated therein: And it is further ordered, That, with this declaration, the cause be remitted back to the Court of Session in Scotland, to proceed further therein as shall be just and consistent with this declaration, direction, and judgment.Solicitors: Brundrett, Randall, Simmons, and Brown — G. & T. Webster, Solicitors.