MIDLOTHIAN. his rent, as everything within the four walls might be said Smith Premier to be a tool of trade. I cannot hold that this was the Typewriter Co. v Cotton's Trustees. meaning of this rule of law which exempts tools of trade Nov. 16, 1906. from diligence. Sheriff MILLAR. Nov. 20, 1906. Sheriff MACONOCHIE The second question raised was, did the typewriter fall within the invecta et illata of the tenant? Both parties are agreed that a typewriter is an ordinary and usual part of the furniture of a teacher. The article must be the property or in the lawful possession of the tenant. It is doubtful whether if it is lent to him gratuitously, it would fall under the landlord's hypothec, although the case of Wilson v Spankie, 17th December, 1813, F.C., seems to point in that direction. But there is less doubt in the case of an article hired for the ordinary use of the premises and kept permanently there. The difficulty is raised by the rule, Res aliena pignori dari non potest. But that rule does not apply to the case where the owner of the article must be assumed to have given his consent to the pledging of his property. After giving careful consideration to the cases of Penson and Robertson, 6th June, 1820, F.C., and Jaffray v Carrick, 15 S. 93, which have never been reversed by any subsequent case in the Supreme Court, I think it settled that where the owner of an article allows it to be transferred on a contract of hiring to premises of which he knows the nature and the character of the occupation, and to remain there for a lengthened period for the use of the tenant of these premises, he must be presumed to have given his consent to its being subject to the landlord's hypothec. I would refer to the cases of Park v Storrey, 14 Sh.Ct. Rep. 44, and Dickson v Singer Manufacturing Co., 2 Guthrie's Select Sheriff Court Cases, 269, and the case of the Howe Machine Co., also reported there. In the present case, the owner of the article knew that the premises were used for the purpose of teaching, and that a typewriter was a usual article of furniture for such premises. Moreover, he left the article there for a long period to be used for the ordinary purposes of the ocupation of the premises, and, accordingly, I am of opinion that he subjected his property to the landlord's hypothec. It is averred that the contract of hiring had expired, and that the tenant had the gratuitous use of the article till the owner had time to remove. I think the case of Wilson ▾ Spankie (supra cit.) applies to such circumstances. V On the whole question I think the defenders are entitled to be assoilzied, with expenses. J. G. M. EDINBURGH, 29th November, 1906.-The Sheriff, having heard counsel for the parties and having considered the MIDLOTHIAN. Sheriff MACONOCHIE. appeal, sustains the first plea in law for the defenders; further, adheres to the interlocutor of the Sheriff-Substitute Smith Premier Typewriter Co. v now appealed against, and dismisses the appeal; finds the Cotton's Trustees. pursuers liable to the defenders in the expenses of the appeal, Nov. 29, 1906. &c. C. C. MACONOCHIE. Note. The facts (so far as necessary for the decision of this case) averred by the pursuers may be very shortly stated. On 15th May, 1905, the defenders let to Herr Hopp, whose dwelling-house was elsewhere, certain premises in which he carried on the business of a teacher of languages. On 3rd March, 1906, Herr Hopp hired from the pursuers a typewriter on the hire-purchase system. About the end of May, 1906, Herr Hopp told the pursuers that he had executed a trust deed for behoof of his creditors, and terminated the contract of hiring between him and them. Thereafter the pursuers, for their own convenience, allowed the machine to remain with him for a short time longer to be kept by him for them. The said machine, although in Herr Hopp's custody, was their property unconditionally." For the purpose of a decision on relevancy, I, of course, assume that these facts are true. On 11th May, 1906, the defenders raised a petition of sequestration for rent, inventoried Herr Hopp's possessions in the premises, including the typewriter, and eventually sold the machine in question. Prima facie they were entitled to do that, and the question comes to be whether the pursuers have averred a case relevant to show that the defenders acted beyond their rights. Before the Sheriff-Substitute the pursuers maintained, in the first place, that the typewriter was a tool of Herr Hopp's trade, and therefore did not fall within the landlord's hypothec; but at the hearing before me their counsel intimated that he did not longer maintain that view, so I need say nothing further about it. In the next place, the pursuers argued that a single article hired out to a tenant is not subject to hypothec, unless it is part of the ordinary plenishing of the premises let, and that this typewriter was not part of the ordinary plenishing of Herr Hopp's teaching establishment. I may say in passing that the latter statement comes somewhat oddly from the pursuers, looking to their averment in cond. 2, that it is the custom of the trade to allow teachers a special reduction of 10 per cent. on the hiring rate and purchase price of typewriters, on the footing that typewriters are necessary to their business as teachers"; but, apart from that specialty altogether, I cannot find any authority binding on me to the effect that the law is as stated by the pursuers. I am aware that there has been considerable diversity of opinion among Sheriffs with Typewriter Co. v Sheriff MACONOCHIE. MIDLOTHIAN. regard to the point, but I am unable to discover in the cases Smith Premier decided in the Court of Session any recognition of the disCotton's Trustees. tinction between articles forming part of the ordinary plenishNov. 29, 1906. ing of the premises let and other articles. The distinction was founded on in Penson and Robertson, 6th June, 1820, F.C., and disregarded by the Court, and it must be remembered that pianos-a piano was the article there in questionwere by no means so common in ordinary houses as they are now. In none of the subsequent cases do I find any decision in favour of the argument, but I may say a few words with regard to the dicta in Bell v Andrews, 12 R. 961. That was a case of a piano found in the tenant's house, but it was admitted that it was not the property of the tenant nor in his house on a contract of hiring. The dicta of their lordships who decided that case, so far as they touch the question of hired articles, are therefore, no doubt, obiter, but Lord President Inglis says-" Although the right of property in moveables in the house of a tenant may be in another, there are certain cases in which they will nevertheless fall under the hypothec. One is the case of hired furniture. No case has yet been decided to the effect that a single article belonging to a third party and not hired falls under the hypothec." That is a perfectly general statement, from which the pursuers can, to say the least, take no benefit. Lord Shand, no doubt, uses words which show that the law of Penson and Robertson did not greatly commend itself to him; he adds, however, that the reason for that law does not seem to him very satisfactory, "but our authorities give it, and, accordingly, we must accept it as applicable to furniture hired." On these grounds, then, I hold that the pursuers' action, so far as it is based on the circumstances of the hiring, is irrelevant. In the last place, the pursuers maintained that, assuming that the typewriter was subject to the hypothec while rent for it was being paid, the hypothec ceased directly the tenant's possession became gratuitous. This, so far as I know, is a question which has never been decided. With regard to the law concerning articles lent to a tenant, I may say that I do not agree with what I take to be the view of the Sheriff-Substitute, when he says that "it is doubtful whether if it is lent to him gratuitously it would fall under the landlord's hypothec, although the case of Wilson v Spankie, 17th December, 1813, F.C., seems to point to that," and uses somewhat similar words at the end of his note. I do not think that that case decides anything with regard to gratuitous lending, and the law on the point seems to me quite clear. As pointed out by Lord President Inglis in Bell v Andrews, the tenant in Wilson's case "had been seques MIDLOTHIAN. Typewriter Co. v trated under a mercantile sequestration," and "the creditors had allowed the furniture to remain in the house just as Smith Premier before the sequestration. By its being left in the Cotton's Trustees. house, a certain security was given to the landlord; it continued liable just as before the bankruptcy of the tenant. The credit for rent was prolonged on the continued possession of the furniture as under a hypothec assented to by the creditors." The last few words humbly appear to me to set forth the whole ground of judgment. The case does not in any way conflict with the case of Cowan v Perry, 31st January, 1804 (reported in Bell's Com. II. 30), which, to use Lord Mure's words in Bell v Andrews, distinctly decides that things gratuitously lent do not fall under a right of hypothec." That view has been given effect to in several later cases (e.g., Adam v Sutherland, 2 Macph. 6, and Bell v Andrews, supra cit.), but none of these cases decide the present question. Here the article, I now assume, fell under the hypothec while the contract of hiring subsisted, and the right of the hypothec had never expired, as it had in the case of Adam v Sutherland, by the public sale of the furniture by the Crown to satisfy its preferential debt. Here the arrangement that the typewriter was to continue in the possession of the tenant gratuitously was not communicated to the landlord (at all events, it is not averred that it had been), and could not have come to his knowledge through any public channel, such as the sale in Adam's case, at or before the date of the alleged arrangement. To hold that a private arrangement of that kind was to prejudice the landlord's rights would open a very wide door to fraud on the hypothec, and I am not prepared to take such a step. I can quite picture to myself special circumstances in which the Court would hold that the landlord had consented to a restriction of the subjects over which his hypothec was available, but there are no such special circumstances averred here, and that being so, and in the absence of authority to the contrary, I am of opinion on this branch of the case also the pursuers' averments are irrelevant. As there has been no proof in the cause, I have, to keep For pursuers-Mr. INGRAM, advocate, instructed by Messrs. Nov. 29, 1906. Sheriff MACONOCHIE. No. 16. RENFREW AND BUTE. Glasgow & South- SHERIFF COURT OF RENFREW & BUTE. THE GLASGOW AND SOUTH-WESTERN AND THE CALEDONIAN RAILWAY COMPANIES, Appellants; THE DISTRICT COMMITTEE OF THE SECOND OR LOWER DISTRICT OF THE COUNTY OF RENFREW, Respondents. Public health-Special lighting district-Resolution to enlarge-Appeal-Local Government (Scotland) Act, 1894, sec. 44, sub-secs. (2) and (5)-Public Health (Scotland) Act, 1897, sec. 38.-A District Committee having resolved to enlarge an existing special lighting district, a railway company, part of whose lands fell within the proposed enlarged district, appealed to the Sheriff against the resolution; appeal held competent. The Local Government (Scotland) Act, 1894, sec. 44, sub-sec. (2), provides that, upon a requisition being received in terms of sub-sec. (1) of the said sec. 44, "the District Committee or County Council, as the case may be, shall be bound to meet, after twentyone clear days' notice, and shall consider the propriety of forming such parish or landward part of a parish or portion thereof into a special district, and shall by resolution either approve or disapprove of the formation of a special district for the purposes stated in the requisition of any one or more of them " (i.e., inter alia, lighting) "and, if they approve thereof, shall define the boundaries of such special district. Such resolution shall be final." Sub-sec. (5) of the same section provides" The area of a special district formed under this section may be enlarged or altered, and two or more special districts may be combined from time to time, by resolution of the District Committee or County Council, as the case may be, in terms of this section, with or without a requisition. The 38th section of the Public Health (Scotland) Act, 1897, provides that, "with respect to the formation of special districts for scavenging and other" (inter alia, lighting) "purposes under sec. 44 of the Local Government (Scotland) Act, 1894, . it shall be competent for any person interested to appeal to the Sheriff against any resolution of a District Committee or County Council, as the case may be, under sub-sec. (2) of the recited section." No direct right of appeal is in terms enacted against a resolution to enlarge an existing district under sub-sec. (5) of the Local Government Act, 1894. |