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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Howard v. Muir [1870] ScotLR 8_6 (18 October 1870) URL: http://www.bailii.org/scot/cases/ScotCS/1870/08SLR0006.html Cite as: [1870] ScotLR 8_6, [1870] SLR 8_6 |
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Page: 6↓
Where possession had begun in bona fides, and no interruption of bona fides occurred till the production of certain documents in an action of ejectment against the possessor— Held, in a subsequent action of damages, that he was not bound to submit until he had taken the final judgment of the Court upon these documents, and that his mala fides could only be counted from the date of that judgment, not from that of the production.
This was an appeal from the Sheriff-court of Lanarkshire. The petitioner had obtained a lease for seven years, from Whitsunday 1862, of a spirit shop in Stobcross Street, Glasgow, and continued in possession up till Whitsunday 1867. He then sold the lease and good-will of the shop, together with the stock-in-trade, to Douglas Gow, conform to missive letters of date May 6th 1867. As part of the price, Gow accepted three bills, and gave a back letter of date May 15th 1867, acknowledging that, until these bills were paid by him, he remained Howard's tenant in the premises. Gow entered upon and continued the business till October 1867, when he sold his lease, business, and stock to the defender, who thereupon took possession. Gow's bills remained unprovided for. Howard thereupon brought an action of ejectment against Muir in January 1868, which was not concluded until after Whitsunday 1869, when Howard's right had expired. After a variety of procedure, Howard's right to the premises was sustained by the Sheriff, though too late to be effectual. Howard did not produce either to Muir or to the Court Gow's back letter to him, on which his right rested, until required to do so by the Sheriff in the process of ejectment in January 1869. Howard thereafter brought the present action of damages against Muir for wrongous possession, concluding for £150. The Sheriff assoilzied the defender from the conclusions of the action, holding his possession bona fide, at any rate up to 14th April 1869, and considering that there was no evidence whereon he could assess any material damage between that date and Whitsunday 1869.
The pursuer appealed.
Brand for him.
Watson and Mackintosh for the respondent.
Appeal dismissed.
Solicitors: Agent for Appellant— A. Kirk Mackie, S.S.C.
Agents for Respondent— J. & R. MacAndrew, W.S.
