CHRISTOPHER SMYTH v GEORGE ROGERSON (Court of Session)

The lease of Pennersaughs was, along with the other leases on the Queensberry estate, reduced at the instance of the Duke of Buccleugh, and the tenant and subtenant were, in consequence, removed in 1822, being three years before the expiration of the principal lease and sublease.

The result of this action was, that on the 11 June 1828 the pursuer, Thomson, recovered damages, including those to which the subtenant Calvert had a claim, for the loss of possession of the farm for three years that remained of the period of the lease when the removing took place.

The Sheriff of Dumfries, before whom the multiplepoinding was brought, preferred Rogerson's claim, holding that of Smyth ‘inept, in respect the arrestee had no funds in his hands, at the time Smyth's arrestment was used, belonging to the common debtor, nor was under any obligation to account to him.’

Lord Glenlee .—I confess I could not agree with the Lord Ordinary's interlocutor; and, on the other hand, I thought the Sheriff's interlocutor well founded. But on the supposition that, in 1821, Thomson raised an action against the Queensberry Executors, acknowledging his obligation to account to Calvert, the case comes so near the decided cases alluded to by your Lordship, that I would be for sustaining: the advocator's arrestment.

Lord Cringletie .—This is just my doubt, whether there was an acknowledged obligation on the part of Thomson to account to Calvert. The question, as it appears to me, comes to this, whether Thomson was under an obligation to Calvert to do any other thing than simply to grant the assignation to the warrandice of the principal lease? I would have been satisfied if there had been such an assignation; for what puzzled me was, whether there was here a direct obligation to account on the part of Thomson.