Scottish Court of Session Decisions

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Cite as: [1870] SLR 8_164, [1870] ScotLR 8_164

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SCOTTISH_SLR_Court_of_Session

Page: 164↓

Court of Session Inner House First Division.

Friday, December 2. 1870.

8 SLR 164

Macandrew (Fraser's Trustee) and Others

v.

John and Donald Fraser.

Subject_1Process
Subject_2Interim Order
Subject_3Ultra petita.
Facts:

Where, upon closing the records in conjoined actions
Page: 165↓
of reduction and suspension, and while the question of title to sue was still undecided, the Lord Ordinary had issued an interim order for delivery— Held that the order was incompetent in hoc statu; and that, under the special circumstance of the case, it was ultra petita, being neither concluded for in the summons, nor craved in the note of suspension.

Headnote:

This was a reclaiming note against an interim interlocutor, pronounced by Lord Gifford in two conjoined actions of reduction and suspension, at the instance of Colin Lyon Mackenzie of St Martins, residing in Inverness, as trustee under a trust-disposition, dated 8th January 1868, granted by John Fraser, ironmonger, Inverness, for behoof of his creditors, against the said John Fraser, Donald Fraser, residing at Platchaige, in the county of Inverness, his brother, and Lord Lovat, for his interest as landlord of the farm of Platchaige. The action of reduction was signeted on 11th March 1870, and concluded for the reduction of an assignation to the lease of the said farm of Platchaige, granted by the defender John Fraser to his brother the said Donald Fraser; and also for decree of removing from said farm, and cession of said farm and stock thereon to the pursuer. Defences were lodged for the defenders John and Donald Fraser, but no appearance was made by Lord Lovat. The suspension and interdict was raised on 25th March 1870, and prayed that the defenders, or either of them, be interdicted from using or carrying away the stock, crop, farm implements, manure, furniture, and other effects, from the said farm of Platchaige; and also for interdict against the said defenders, or either of them, labouring, sowing, or planting the said farm. The said note also prayed for interim interdict, and, if necessary, that a manager be appointed to labour said farm. Interim interdict was granted on 28th March 1870. On 11th May 1870 the estates of the said John Fraser were sequestrated; and Henry Cockburn Macandrew, solicitor in Inverness, was appointed trustee on the said sequestrated estates. Mr Macandrew was sisted as a party to both actions, and has insisted in them accordingly. The defender Donald Fraser at no time laid claim to the stock, &c., on the said farm of Platchaige: but, when called upon by the pursuer Macandrew to deliver up said stock, &c., refused to do so until he had been paid for taking care of and feeding the stock, maintaining that he had a lien and right of retention for what he had laid out in so doing.

The Lord Ordinary, on 19th July 1870, closed the record in both actions, and conjoined them, and on the same day, on the motion of the pursuers, pronounced the interlocutor now reclaimed against, which was in the following terms:—“ The Lord Ordinary having heard parties’ procurators on the motion of the pursuers and suspenders for warrant to obtain possession of the stock, implements, manure, and furniture which belonged to the bankrupt John Fraser, in respect it is admitted by the respondent Donald Fraser that (Ans. 17) ‘he does not, and never did, claim any right under the said assignation to the stock, crop, furniture, and other effects mentioned,’ ordains the defender and respondent Donald Fraser to give up and deliver to the suspenders and pursuers the whole moveable stock, separated crop, implements, manure, and furniture on the farm of Platchaige, which belonged to the said John Fraser, and grants warrant to the suspenders and pursuers to receive and take possession thereof, reserving all questions and claims between the parties.”

The defenders John and Donald Fraser had preliminary pleas in both actions of want of title in the pursuers to sue said actions; and at the time when the interlocutor complained of was pronounced the question of title was still undecided.

At the hearing the Solicitor-General and Mackintosh, for the reclaimers and defenders, argued, that such an order was not competent, being neither concluded for in the summons, nor prayed for in the note of suspension; and that the order was further incompetent at such a stage of the case when the question of title was still undisposed of.

Marshall and Watson, for the respondents and pursuers, contended, that the interlocutor should be sustained, the defender Donald Fraser having rendered it necessary by his refusal to give up the stock; and that it was moreover competent, being concluded for under a declaratory conclusion in the summons.

At advising—

Judgment:

The Lord President —There are two processes before the Court —the one of reduction, declarator, and count and reckoning, the other of suspension and interdict; and there were two records made up in these actions. On 19th July last the Lord Ordinary closed the records in both actions, and then conjoined the processes, and on the same day pronounced the interlocutor now under review. Now that interlocutor is of a very peculiar nature, and I am not sure that I ever saw anything like it before. It proceeds on the ground that the defender Donald Fraser “does not, and never did, claim any right under the said assignation to the stock, crop, furniture, and other effects mentioned;” and on the strength of that he “ordains the defender and respondent, Donald Fraser, to give up and deliver to the suspenders and pursuers the whole moveable stock, separated crop, implements, manure, and furniture on the farm of Platchaige, which belonged to the said John Fraser, and grants warrant to the suspenders and pursuers to receive and take possession thereof, reserving all questions and claims between the parties.” The words used are of great importance— he “ordains” and “grants warrant,”— he does not decern.” This is not a decree; it is only an order, and is not extractable, and, of course, it was not meant to be extractable, but to be put into execution de piano, and to allow the pursuers to take away the stock of the farm. Now, whether it was competent at this stage of the action to pronounce such an order, and with such conclusions in the summons, is the question before us. We find that the defenders have preliminary pleas of want of title in the pursuers to insist in either of the actions, and that at the time of pronouncing this interlocutor the Lord Ordinary actually had the question of title at avizandum. There can be no doubt that if he finds that the pursuers have no title, the result will be most singular. Therefore I doubt whether such an interlocutor is competent, on that ground alone. But, upon consideration of the conclusions of the summons and the prayer of the note, its incompetency becomes quite clear. The note in its prayer does not ask for such an order. As regards the conclusions of the summons, they are different and more complicated. The declaratory conclusion certainly concludes— whether the assignation “be reduced or not, it ought and should be found and declared that said Colin Lyon Mackenzie, as trustee

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foresaid, has the only good and undoubted title to the whole cattle, sheep, stock, crop, implements of husbandry, household furniture, and other effects of every description, situated on the said farm of Platchaige, and also to the said lease thereof, and to possess and labour the said farm, and reap the crops thereof during the present year 1870, subject always to the rights of the said Eight Hon. Thomas Alexander Fraser, Lord Lovat, as landlord of said farm; and the said Donald Fraser ought and should be decerned and ordained by decree foresaid, instantly to remove from the said farm, and to cede to the said pursuer the possession of the cattle, sheep, stock, crops, implements of husbandry, household furniture, and other effects of every description situated thereon, in order that the pursuer, the said Colin Lyon Mackenzie, may have access to the same, for the purposes of the said trust, and to labour, sow, and reap the crops of the said farm, as aforesaid, for the purposes of said trust, subject always to the rights of the landlord, as aforesaid.” Now it must be kept in view that there are three defenders in the action of reduction, &c.— First, John Fraser, the bankrupt; second, Donald Fraser, his brother; and third, Lord Lovat, the landlord of the farm, and these three are all called to “hear and see the same and all that has followed or may follow thereon.” Lord Lovat does not appear in the action, and does not think it necessary to appear. I can quite understand that he does not choose to say what he will do as regards either party as tenant of Iris farm. But if there had been a conclusion that, whatever the defender Donald Fraser might be found entitled to, he would be ordered to give over the stock and other furnishings of the farm; in that case, I have no doubt that Lord Lovat would have put in an appearance in this action. I do not think that there is anything like such a conclusion as I have hinted at in this action. I think that under this summons the stock is meant to go along with the farm, and the conclusion which I have quoted fully carries me out in this opinion. In it Donald Fraser is called upon to remove from the farm, and to cede to the pursuer the possession of the stock and other furnishings of the farm. Does that mean that the two are to be separated? No, the pursuer concludes to get into possession of a stocked farm, and that is the clearer on account of the words“in order that the pursuer may have access to the same,” &c. I am therefore of opinion that this interlocutor is incompetent as ultra petita; and though the question as to whether it was expedient does not accordingly arise, I am also of opinion that it was inexpedient at the stage of the case at which it was pronounced.

Lords Deas and Ardmillan concurred.

Lord Kinloch—I think it clear that, whatever the terms employed, this is a judgment on the merits—though the wording of the interlocutor is peculiar. I am of opinion that this judgment was pronounced at an improper stage. There is still an objection to the pursuer's title to sue standing undecided—the result of discussing which may be that the action is dismissed. The conclusions of the summons are complicated; and though I do not say that they cannot be unravelled, still it would be a matter of difficulty to do so satisfactorily at present.

Lord Ordinary's interlocutor recalled, and the pursuer's motion refused.

Solicitors: Agents for Reclaimers— Murdoch, Boyd & Co., S.S.C.

Agents for Respondents— Mackenzie, Innes & Logan, W.S.

1870