Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Aberdeenshire, of a process of interdict brought in that court by the advocator against the respondent. The advocator was proprietrix of a shop in Union Street, Aberdeen, which was let up to the 1st June 1863 to William Fraser, merchant in Aberdeen, as a wine and grocery shop, under a lease which excluded assignees and sub-tenants, but contained no special conditions with reference to the business to be carried on in the premises. In October 1862, the respondent applied to the advocator for a lease of this shop as Fraser's successor, and obtained a lease for five years from the date of the expiry of Fraser's possession and the lease so granted contained an express prohibition against the use of the shop as an auction room. Subsequent to the granting of this lease, the respondent made an arrangement with Fraser by which he obtained immediate entry to the subjects, taking over the remainder of Fraser's lease, and obtaining the verbal consent of the advocator to this arrangement. The question now was, whether, during the period which intervened before the expiry of Fraser's lease, the respondent was entitled to sell goods by auction in the shop in question? It was, on the one hand,

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maintained by him (the respondent) that there was no restriction upon his use of the subjects during the period in question, either at common law or in virtue of any arrangement to that effect. It was, on the other hand, maintained by the advocator that the use of the subjects as an auction room was (1) illegal, as an inversion of the use for which the subjects were let to Fraser; and (2) contrary to an express condition alleged to have been made verbally by the advocator in consenting to the subsetting of the shop by Fraser.

The Sheriff-substitute granted interim interdict; but, on a record having been made up and proof led, he recalled that interdict and refused the advocator's petition. The Sheriff adhered, and the advocator now brought the present advocation, in which it was agreed to cancel the proof taken in the Inferior Court, and have a new proof before the Lord Ordinary. On advising that proof, the Lord Ordinary adhered to the judgment of the Sheriff.

His Lordship pronounced the following interlocutor:—

“Finds that the advocator (petitioner in the Sheriff-court) has failed to prove, as matter of fact, that it was a condition of the consent given by her, or on her behalf, to the occupation by the respondent of the shop No. 88 Union Street, Aberdeen,—of which she was proprietrix, and of which the witness William Fraser was the tenant for the period between the 6th October 1862 and 1st June 1863, when the lease held by the said William Fraser was to terminate, and a lease in favour of the respondent for five years was to commence to run,—that no public sale or sales of books by auction was to be permitted therein during the period foresaid: Finds in point of law that, having relation to the character of the subjects so held in lease by Mr Fraser, and let to the respondent, there existed no implied prohibition against carrying on sales by auction therein: and further, Finds that such sales by auction did not operate an inversion of the use and possession of the premises; and, with reference to the foregoing findings, Repels the reasons of advocation; remits simpliciter to the Sheriff; and decerns: Finds the advocator liable to the respondent in the expenses incurred by him in this Court: Allows an account thereof to be lodged, and remits the same to the auditor to tax and to report.

(Signed) Charles Baillie.

Note.—This case is not free from difficulty. But the Lord Ordinary is of opinion that no general principle of law or decision can be referred to by the advocator which fixes that it is illegal to carry on sales by auction in a shop such as that here in question, within burgh. If special damage through such use be done and proved, the interference of the proprietor therewith would be warranted on grounds which would be distinct and sufficiently intelligible. But that is not the case with which the Lord Ordinary has had here to deal, and, in the whole circumstances, he is of opinion that the advocator has failed to show reason sufficient to set aside the judgments in the Sheriff-court, which form the subject of this advocation. (Initd.) C. B.”

The advocator reclaimed.