EDWARD RAILTON v ROBERT MUIRHEAD (Court of Session)

In answer to this petition it was stated, that William Russell was the sole partner of the firm of W.J. Russell; that he entered into possession not as tenant but as proprietor; and therefore the petitioner, who was merely an heritable creditor, was not entitled to exercise a landlord's right of hypothec, and under it to interrupt the legal diligence of the respondent against his debtor.

The Sheriff pronounced the following interlocutor: ‘Finds, that the poinded effects in question are hypothecated to the pursuer, to the extent of the rent payable by the tenants of the premises; and finds, accordingly, that the pursuer was entitled to sequestrate for more than the current annualrent of his bond: Therefore continues the interdict in terms of the conclusions of the complaint; and finds the defender, Railton, liable in the fees of extract; but, in the circumstances of the case, finds no expenses due, and decerns.’

The alleged right of the respondent to exclude the advocator, as the poinding creditor, is founded on a pretended right of hypothec over the goods poinded; but he possesses no such right with regard to these goods. The disposition by the common debtor in favour of the respondent is merely a disposition in security over the heritable subjects therein mentioned, for payment of a certain debt, and gave the respondent no hypothecary right, whereby he can exclude the advocator with regard to the poinded goods.

There is no pretence for saying that the W.J. Russell and Company, who occupied the premises at the date of the poinding, was any other than the common debtor himself— Bell's Commentaries , vol. ii. p. 625. Neither is there any ground for saying that the common debtor, by whom the premises were then occupied, held them as tenant under the respondent; the respondent having no power to let to the common debtor what was his (the common debtor's) own property; and, in point of fact, no arrangement of such a nature having ever taken place between these parties.

Lord President .—The respondent admits in his minute that he cannot make out the allegation, upon which alone his claim could rest, viz. that Russell, or Russell and Company, were his tenants.