Legal Subject: Hypothec |
Landlord's or superior's right of distress. The superior's is for the amount of the feu-duty, and has priority over the landlord's. The landlord's hypothec extends over the crop for the rent of the year in which it was grown, and over the stock on the farm for the current year's rent. (See Sequestration for Rent.) In the case of houses, &c., the landlord has a hypothec on the invecta et illata, i.e., the household furniture of his tenant. The law agent's hypothec is a solicitor's lien over title-deeds.
| Case | Date | Legal Subject | Abstract |
|---|---|---|---|
| Briggs v. Stark and Balfour | 1778 | Hypothec, Arrestment | This case was about the effect of a landlord’s “hypothec,” which was a right to retain or recover the fruits of leased property as security for rent. David Peebles, a tenant, fell behind on rent that was due to his landlord, Janet Balfour. Balfour obtained a Sheriff’s decree to sequester Peebles’s crops; the order covered the current year’s rent, as well as past and future years. Defender Robert Stark, as sequestrator, auctioned off the crops and used the proceeds to compensate Balfour. However, John Briggs, another creditor of Peebles, challenged Balfour’s right to anything more than the current year’s rent. Stark and Balfour responded that the Sheriff’s decree entitled Balfour to any proceeds up to the amount of her entire claim. The Sheriff found no balance due by Stark to Peebles, and Briggs' arrestment was rendered useless. Briggs then submitted his case to the Court of Session by bill of advocation, and it came before Lord Alva. Alva ultimately repelled the reasons of advocation and Briggs petitioned the Court to alter this decision. Marginalia on the case documents indicates that the Court may have indeed altered Alva's decision. |
| John Finlay v. Robert Syme Clerk to the Signet | 23 Jan 1773 | Hypothec, Debt security | Robert Syme, defender, had in his possession a number of papers belonging to John Finlay, pursuer. Finlay sued his own father, Robert Finlay, and asked Syme for the papers as evidence in the suit against his father. Syme sought to retain Finlay's papers because Finlay was indebted to him. The court twice ordered Syme, by interlocutor, to return the papers to Finlay's custody. Syme refused, claiming that he had a hypothec (security) on the writings in his custody. Syme argued that he was not required to return the papers until Finlay satisfied his debt to Syme. Syme cited authorities for the proposition that agents have a right of hypothec or retention in their client's writings for claims of payment. |
Definition source
Kinnear, J. B., Digest of House of Lords Cases Decided on Appeal from Scotland, 1709-1864 — Glossary of Scottish Law Terms (Edinburgh, 1865). Public domain.
