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Scottish Court of Session Decisions >>
Anderson v Gordon, and his Creditors. [1703] Mor 4031 (19 June 1703)
URL: http://www.bailii.org/scot/cases/ScotCS/1703/Mor1004031-011.html Cite as:
[1703] Mor 4031
The Lords refused a tenant his expenses in suspending on multiplepoinding against his landlord's creditors, but reserved him action against his landlord, or retention of the next year's tack-duty.
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William Anderson being tenant to one Gordon in Kinghorn, the several creditors of the said Gordon arrest in the tenants hands; whereupon he is necessitated to suspend, and likewise raised a multiplepoinding, wherein he called all the competitors; and they being ranked according to their preferable diligence by arrestment, he now gives in a bill, representing, he had been at L. 5 Sterling of expenses in securing himself against double payment, and craved he might have retention of it out of the first end of the sums decerned. It was alleged for the creditors, That they were seeking no more than their own, et qui suum recipit et sibi vigilavit, he could have no retention against them; but that debate fell only betwixt him and his master. It was contended for the master, That when tenants are unwilling to pay, they go and stir up any pretending to be their master's creditors to arrest in their hands, that they may have a specious ground of retention of the rent, and so the stop being by their own invitation and procurement, they ought to have no benefit thereby. ——The Lords considered this general point of importance; for, if expenses were indefinitely given to all debtors who suspend upon arrestments frequently procured by themselves, it would make a great confusion, and has never hitherto been granted; but the case of a poor tenant seems more favourable than other ordinary debtors, and it were hard to make him lose all his expenses, when he is put under an absolute necessity of suspending, by the concourse and competition of his master's creditors on an incumbered estate; and to take it off the creditors, were unreasonable; and quoad the master, it may be said, that his tenant might suspend on consignation, and then plead for his expenses; otherwise not.——— The Lords refused the bill, reserving him action or retention against his master in the subsequent year's tack-duty. — But if he be removed out of the ground, retention will signify nothing to him; and consignation is not in every tenant's power.
Fol. Dic. v. 1. p. 287. Fountainhall v. 2. p. 184.
