Scottish Court of Session Decisions

This was an action of reduction and damages brought in the following circumstances:—The pursuer in this action, Thomas Fairbairn, had for some time carried on business in Caledonian Terrace, Edinburgh, as a spirit merchant, but in February 1877, having got into difficulties, he came to an agreement with a brother-in-law named John Cockburn, who had previously carried on business there, that he should take back the business at a price named, but that he was himself to remain in the premises and receive a certain weekly sum from Cockburn for the sake of his licence. Cockburn became bankrupt in December 1877, and his estates being sequestrated, Mr Hugh Miller, C.A., the defender in this action, was appointed trustee.

Page: 706↓

On 13th December, after having written to Fairbairn calling upon him to give up the shop, &c., Mr Miller, the trustee, presented a petition in the Sheriff Court of Midlothian, inter alia, praying the Court “to ordain the defender to deliver up to the pursuer the whole goods and effects at present in or pertaining to the licensed grocer's shop No. 13 Caledonian Terrace, Edinburgh, and the business carried on therein, and also the whole books, accounts, vouchers, and documents in said shop, and belonging and pertaining and having reference to said shop and the business carried on therein, wherever they may be in his possession, and to remove himself from the occupancy of said shop, and deliver up the keys thereof to the pursuer.”

The Sheriff ( Hallard) thereupon pronounced an interlocutor ordaining Fairbairn to deliver up the keys in question, and the whole books, accounts, vouchers, and documents in the shop. That judgment was not extracted, nor was any charge or service of it made on the pursuer. Next day the trustee's agent appeared, and stated that Fairbairn had refused to obtemper that order of the Court, “and moved the Court to grant warrant to officers of Court summarily to eject’ him from his shop, whereupon the Sheriff-Substitute pronounced the following interlocutor:—“Edinburgh, 14th December 1877.—The Sheriff-Substitute, in respect of the foregoing minute, grants warrant to officers of Court summarily to eject the defender Thomas Fairbairn, all as craved, and decerns.— Frederick Hallard.” Under that warrant the ejection was carried out the same day. Fairbairn then raised this action against the trustee for reduction of the warrant and damages for the ejectment, which he alleged had taken place with considerable violence. The pursuer alleged that he was tenant of the premises, and had been carrying on the business for his own behoof. He pleaded, inter alia—“ The pretended warrant ought to be reduced, in respect (1) that it was granted in a process to which the pursuer had not been cited; (2) that it was ultra petita of the petition in the said process; and (3) that the granting of it was irregular and not sanctioned by statute or by common law.”

The defender answered—“(4) The defender was entitled, without any judicial warrant, to have turned the pursuer out of the shop and taken possession of the same, and of the stock, &c., therein, the pursuer being only a servant to the bankrupt, and having no right of tenancy in the shop, or property in the goods therein. (5) The petition, procedure, and warrant of ejection having been regular and legal in every respect, the defender was entitled to proceed as he has done.”

After proof the Lord Ordinary pronounced an interlocutor, in which, after a certain finding in fact, he assoilzied the defender. The pursuer reclaimed. It is unnecessary to notice any point except that relating to the regularity of the procedure in the Sheriff Court. The defender maintained that the proceedings in the Sheriff Court were warranted by the 16th section of the Bankruptcy Act 1856 (19 and 20 Vict. c. 79).

At advising—