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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fairbairn v. Miller (Cockburn's Trustee.) [1878] ScotLR 15_705 (12 July 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0705.html Cite as: [1878] SLR 15_705, [1878] ScotLR 15_705 |
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Page: 705↓
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Held that a warrant of ejectment following upon an order pronounced in the Sheriff Court in a petition at the instance of the trustee on a bankrupt estate, ordaining delivery of certain premises, &c., which were in the occupation of the defender, was illegal, in respect there had been no intimation of the application to nor service of it upon the defender, and damages found due therefor.
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—
Now it appears that this petition was never served on the pursuer. Not only was there no citation, but there was no intimation of any kind given to him. This certainly seems a very extraordinary course, and I am not aware of any precedent of a warrant of this kind being used without such intimation. It is said that this man was not in regular occupation, but was in fact no better than a domestic servant who might be turned away by his master without any warning, and that therefore, even if the proceeding was illegal, the ejectment under that warrant was justified seu facti. That is a very strange argument to hear from the mouth of the applicant in the Sheriff Court, for the whole of the prayer of his petition is based on the assumption that the pursuer was actually in possession of the shop, and that it was necessary to remove him so that the trustee might get possession of the subject. In fact, every statement there goes to show that the petitioner recognised the fact that the pursuer was for the time really in occupation.
But further, when we come to the facts of the case, it is clear that he was in one sense in occupation of the shop. The business and shop had once belonged to him, and it was only because of certain missives of sale that the Lord Ordinary decided that he had ceased to be the owner of the shop. But the possession remained. He discharged the accounts, his name was upon the shop-front, and every thing appeared to be in the same position as it was before the transfer from Fairbairn to Cockburn. It was, however, indispensable that if the trustee wanted to get possession he should get a warrant for removal unless the pursuer would voluntarily consent to go.
Now, that being the state of the case, is this a legal warrant? For my part I can hardly see on what grounds anyone can attempt to support it. Reference was made to the Bankruptcy Act 1856, section 16, but that section certainly recognises nothing whatever of the kind. It is not applicable in any way to an application like the present by a judicial factor. It is impossible that he should take any benefit from it. I looked with some anxiety at the Sheriff Court Act of 1866 to see whether any justification of such a course could be found there (for very great changes were made by that Act), but I found nothing approaching to an action of a proceeding like this, and therefore no benefit can be taken from that Act
I am on these grounds of opinion that the warrant was illegal, and consequently that the pursuer, who has been ejected from the premises under that illegal warrant, is entitled to have the proceeding reduced, and also I think he is entitled to damages, but in fact the damages are little better than a legal fiction, for the pursuer has
Page: 707↓
But the facts being as they are, it does not follow that there should be any substantial damages. On the contrary, I think the nominal damages proposed by your Lordship are quite sufficient to satisfy all parties, and no further damages ought, in my opinion, to be awarded in the case.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel on the reclaiming note for the pursuer Thomas Fairbairn against Lord Craighill's interlocutor dated 15th March 1878, Adhere to the said interlocutor in so far as regards the findings in fact: Quoad ultra recal the said interlocutor; Sustain the reasons of reduction; Reduce, decern, and declare in terms of the reductive conclusion of the summons: Find the defender liable in damages for the use of the illegal warrant now reduced; assess the same at one shilling sterling, and for which sum decern against the defender for payment to the pursuer: Quoad ultra sustain the defences, assoilzie the defender, and decern: Find no expenses due to or by either party.”
Counsel for Pursuer (Reclaimer)— Smith— Lang. Agent— Daniel Turner, S.L.
Counsel for Defenders (Respondent)— Trayner— M'Kechnie. Agent— William Lowson, S.L.
