Scottish Court of Session Decisions

“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.