Scottish Court of Session Decisions

This was an action at the instance of Mr Ross, sole partner of the firm of Duff, Ross & Co., against Richard Kippen, brought in the following circumstances:—“In the month of August 1863, the pursuer, John Ross, who was then residing in Stirling, and was desirous of entering into business on his own account in Glasgow, noticed an advertisement in the Glasgow Herald, of 5th August 1863, in the following terms:—Partner wanted by a practical engineer who has had long experience in the construction of land and marine engines. He is proprietor of a work and tools capable of doing a large business. The capital required is £3000, and a knowledge of the business is not essential. Apply to Kerr, Anderson & Brodie, 32 St Vincent Street, Glasgow.” Mr Anderson was then and had been for several years

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previously factor and commissioner for the defender.

The pursuer alleged that at a meeting which he had with Mr Anderson, on 7th August 1863, in consequence of the above advertisement, the latter represented to him that the person advertising for a partner was proprietor of the works and tools therein, which were of the value of £10,000, subject to heritable burdens to the amount of £3000, and that on 12th August he introduced him to Mr John Duff as proprietor of the Oakbank Engine Works. Acting upon these representations, Mr Ross entered into a partnership with Mr Duff, in November 1863, and the partners proceeded to carry on the business at Oakbank. The firm paid the half-yearly ground-annual on the property due in February 1864, August 1864, and February 1865, and various assessments due by the proprietors; they further expended various sums in making certain alterations and repairs upon the property; the whole sums thus expended by the firm, on the footing that they were proprietors of the property, amounted to £234, 10s. 8d.

In February 1865 the agent for the defender Mr Kippen, came forward and claimed arrears of rent due from the property, of which he produced an absolute disposition from Mr Duff in his favour, dated 1861. The pursuer then learned for the first time that Duff, instead of being owner of the property, held it on lease from Kippen.

In April 1865, Mr Kippen sequestrated the whole tools and implements in the works for the rents alleged to be due to him, and the works were accordingly closed.

The whole disputes between the pursuer and defender were referred to Mr Adam Paterson, writer, Glasgow, who pronounced the following award on September 5, 1867 :—“Having again considered the submission proceedings: Finds that the only question remaining now to be disposed of is the right of property in the moveables within the foundry, which are claimed by Duff, Ross, & Company, by virtue of a contract of copartnery of that firm under which these moveables were, as is alleged, acquired by the company from Mr Duff, the owner then in possession, and which are likewise claimed by Mr Kippen by virtue of the disposition of May 1861 by Mr Duff in his favour, under which, as alleged by Mr Kippen, the moveables were acquired by him; or alternatively by virtue of the process of sequestration at Mr Kippen's instance against Mr Duff, and Ross, & Company, by force of which Mr Kippen's right of hypothec as proprietor of the work was, as contended by him, made effectual against these moveables; and having heard the parties' agents on their several pleas: Finds that the disposition by Mr Duff to Mr Kippen, so far as it imports a transfer of the moveables in the work was not completed by delivery, and that the moveables continued after as before that transfer in the actual and undisturbed possession of the seller: Finds that the contract of copartnery of Duff, Ross, & Company made in November 1863, whereby Mr Duff contributed the moveables in the works as in part of his share of capital, and assigned these articles to the copartnership, imported an onerous and bona fide transfer thereof, which was completed by the company entering on the actual possession of the work and whole contents thereof: Finds that the completed right of Duff, Ross, &.Company, thus constituted, is not defeated or impaired by the process of sequestration at Mr Kippen's instance, in respect that that process was ab initio incompetent and inept: Therefore sustains the claim of Duff, Ross, & Company to all articles in and upon the premises, which have been found by the arbiter not heritable, and repels the claim of Mr Kippen thereto.” It thus being finally decided that Mr Kippen was proprietor of the works, and also that the sequestration was incompetent, the pursuer claimed in this action (1) the sum of £234 odd, expended by him on the works while in the bona fide belief that they belonged to his firm; and (2) for a sum, in name of damages, for the injury sustained by him in consequence of this illegal sequestration.

The Lord Ordinary ( Jerviswoode) pronounced this interlocutor:—

“ Edinburgh, 8 th November 1870.—The Lord Ordinary having heard counsel on the proof and whole cause, and having made avizandum, and considered the same, finds, as matter of fact, (1) that the sums, amounting together to the sum of £234, 10s. 8d., to which the 12th head of the condescendence and the first branch of the conclusion of the summons refer, were paid and expended by the firm of Duff, Ross & Company, in relation to and on the property of the Oakbank Engine Works, specified on the record; (2) that the said sum of £234, 10s. 8d. was so paid and expended by the said firm in the bona fide belief, founded on statements previously made by Mr William Anderson, accountant in Glasgow, to the pursuer Mr Ross, who became one of the two partners thereof, that the subjects of which the said engine works consisted were the property of the said firm of Duff, Ross & Company; (3) that the said William Anderson, at the period when the said statements were made by him, was acting in the capacity of factor for the defender, and made the said statements as such factor; (4) that the defender is the proprietor of the said subjects, the Oakbank Engine Works, under disposition dated 21st May 1861 (No. 22 of process); (5) that he, the said defender, as such proprietor, is lucratus to the extent of the expenditure of the sum of £234, 10s. 8d. as above found; (6) that the process of sequestration, at the instance of the factor and commissioner for the defender, which is referred to in the 18th and following articles of the condescendence for the pursuers, and to which the 6th plea in law on their behalf relates, was incompetent and inept as therein set forth; and (7) that, in consequence of the said proceedings on the part of the defender, the moveable machinery and others belonging to the pursuers within the works, suffered considerable depreciation in value, and to an extent not less than £150: Further, as matter of law, and with reference to the preceding findings, repels the first plea in law for the defender, reserved under the interlocutor of the 3d March last, and also the 7th plea in law on his behalf, and sustains the 2d, 3d, 4th, 5th, 6th, and 8th pleas in law for the pursuers; and in respect thereof, and with reference to the preceding findings, decerns, under the conclusions of the summons, for the sum of £234, 10s. 8d. sterling, with interest thereof as libelled, and also for the sum of £150 sterling in name of damages, as also libelled in the summons: Finds the defender liable to the pursuers in expenses, of which allows an account to be lodged; and remits the same to the auditor to tax, and to report.

Note.—The case now disposed of by the Lord Ordinary is of importance to the parties, and involves considerations of difficulty. But these cannot

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be dealt with other than in relation to the whole ret gestœ and matters of fact, which appear from the record and proof, and to which the Lord Ordinary must therefore refer.

“In assessing the damages, in particular, the Lord Ordinary has felt much difficulty. But he has finally come to the conclusion that the sum he has fixed upon is not in any respect excessive, if he be otherwise right in his views.”

The defender reclaimed.

Millar, Q.C., and Orr Paterson for him.

Pattison and Strachan in answer.

The majority of their Lordships held that the Lord Ordinary was right so far as regarded the first sum claimed, but held that the pursuer was not entitled to any damages for injury occasioned by the sequestration.