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Cite as: [1872] SLR 9_492, [1872] ScotLR 9_492

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SCOTTISH_SLR_Court_of_Session

Page: 492↓

Court of Session Inner House First Division.

Tuesday, June 4. 1872.

9 SLR 492

Rowe

v.

Rowe.

Subject_1Interdict
Subject_2Judicial Factor
Subject_3Partnership.
Facts:

One of three partners in a firm resolved to bring the co-partnery to a termination, and sent his co-partners written formal intimation to that effect. On the same day he presented a petition to the Sheriff, craving interdict against the other two partners from disposing of the company's property, using the firm name, &c., and for the appointment of a person to wind-up the company. The Sheriff, of consent of parties, appointed advertisement, and remitted to an accountant to wind-up the company's affairs; and, in respect of these appointments, found it unnecessary to grant the interdict craved. The Court affirmed the judgment of the Sheriff.

Headnote:

John Rowe and his two sons, Gavin Rowe and Thomas Rowe, carried on business together in co-partnery as manufacturers in Glasgow, under the firm of John Rowe & Sons, of which they were the sole partners. One of the sons, Gavin Rowe, resolved to bring the co-partnery to a termination, and to retire from the firm, and required the other partners to unite with him in joint measures for that purpose; and accordingly, on 17th January 1872, he gave formal written intimation to his partners. Upon the same day he presented a petition to the Sheriff, in which he craved—“1st, For interdict against the other two partners from disposing of any portion of the company's property, from collecting any debts due to it, from undertaking any obligations in its name, or from signing the name or firm of the co-partnery; and, 2d, For the appointment of a person to take possession of the company's property, with powers to collect and discharge accounts, to realize the assets, to pay debts, &c., and to divide the balance among the partners.”

The Sheriff-Substitute ( Lawrie) pronounced the following interlocutor:—“The Sheriff-Substitute having heard parties' procurators, refuses, in hoc statu, the motion for interim interdict.”

Against this interlocutor the petitioner appealed to the Sheriff ( Glassford Bell), who pronounced this interlocutor:—

“ Glasgow, 18 th April 1872.—Having heard parties' procurators, and resumed consideration of the whole process, recalls the interlocutor appealed against: Finds that the pursuer and defenders have been for several years past partners, carrying on business in Glasgow as manufacturers, under the firm of John Rowe & Sons, and that the said Gavin Rowe has, by letter dated 17th January 1872, intimated his retirement from said business as at that date: Finds that it thus becomes necessary that due provision should be made for the winding-up of said business, and the valuation of the company's estate, and the division thereof among the partners according to their respective rights and interests: Appoints, of mutual consent, the parties to concur in advertising the dissolution in the Gazette and local newspapers, as also to wind up the business with all convenient speed, and to complete the unexecuted orders: Further, and also of consent, remits to Mr William M'Kinnon, accountant in Glasgow, to collect all debts due to, and, so far as the assets will allow, pay all debts due by, the said firm; to regulate the custody of all monies that have been or may be collected belonging to the firm; to adjust and balance all the books thereof; and to apportion the profits or losses to the partners in accordance with their respective rights: Further, and in respect of the above appointments, Finds it unnecessary to grant the interdict craved: Finds no expenses due; and decerns.”

The petitioner appealed.

R. V. Campbell for him.

Trayner, for the respondents, cited Collins and Feely v. Young, 14th March 1853, 1 Macq. 385.

At advising—

Judgment:

Lord President—The prayer of this petition consists of two parts—1st, For interdict against the other two partners; and 2d, For the appointment of some one to take possession of the company's property, &c. As regards the first part of this prayer, there is no doubt that it is competent before the Sheriff, and it is also quite clear that under the circumstances he could not grant it.

As regards the second part of the prayer, I have great doubts as to its competency. If the appointment had been necessary to save from immediate destruction the assets of the company, the Judge Ordinary might have interposed a temporary arrangement. But this was not the case here, and the second part of this prayer appears to be in substance a prayer for the appointment of a factor on the estate, and that is not competent to the Sheriff.

But there is here a petition before the Court which is in part competent, and the Sheriff has pronounced an interlocutor, and, by consent of parties, arranged to do a certain thing, which may be of great use. Now I am not disposed to allow the appellant to escape the consent which he gave in the inferior Court, merely because he has come to think differently; and as to the contention that he did not consent, I take the interlocutors of the Sheriff as settling that point.

I therefore am of opinion that we should refuse this appeal, and leave either party to proceed to get a judicial factor appointed, if they should think fit.

Lord Deas—I entirely agree with your Lordship. There is no doubt as to the consent of parties—the Sheriff's interlocutor is final upon that point. Such being the case, I do not think we have much to do with the question of the competency of part of the petition, for that does not touch the binding nature of an agreement between the parties.

Lord Ardmillan—There are two prayers in

Page: 493↓

this petition; the first for interdict, which the Sheriff-Substitute very properly refused; and the second for the appointment of a factor. Now, it is plain that the parties were all along aiming at some settlement of the second, in order that they might render the first unnecessary. This is clearly shown by the various interlocutors pronounced by the Sheriff:—

“ Glasgow, 29 th February 1872.—Having heard parties' procurators on the pursuer's appeal, in respect it is stated that they hope to be able to adjust a mutual minute, continues the diet for debate till the 5th March next.”

“ Glasgow, 5 th March 1872.—On the joint motion of parties, who state that they have not yet completed the mutual minute referred to in the preceding interlocutor, on their motion, continues the diet till Monday the 11th instant.”

“ Glasgow, 15 th April 1872.—Having heard parties' procurators, and resumed consideration of this process which has lain over of mutual consent since the date of the last interlocutor, assigns Tuesday the 16th instant as a diet for hearing parties.”

Then, in the final interlocutor, the Sheriff, after appointing advertisement of mutual consent, and remitting to an accountant of mutual consents, “Finds it unnecessary to grant the interdict craved.” Now, this is just the settlement which the parties appear to have been working towards, and there is quite sufficient proof of consent. I therefore agree with your Lordship that the appeal should be refused.

Lord Kinloch concurred, and said that it would overthrow all precedent if a person who had been taken down by the presiding Judge as a consenting party could come and overturn the judgment pronounced in consequence of that consent. There might be peculiar cases in which the Court would sanction such a proceeding, but this was certainly not one of them.

Solicitors: Agent for Appellant and Petitioner— John Latta, S.S.C.

1872