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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir v. More Nisbett and Another [1881] ScotLR 19_59 (3 November 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0059.html Cite as: [1881] ScotLR 19_59, [1881] SLR 19_59 |
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Page: 59↓
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Circumstances in which the Court sustained the appointment of a judicial factor under the provisions of the Sheriff Court Act 1876, sec. 8, made de piano without service or intimation.
William Muir brought an action against Mr More Nisbett, his landlord, concluding for reduction of an interlocutor of the Sheriff-Substitute of Lanarkshire at Airdrie ( Mair) in a petition at Mr More Nisbett's instance, under the Sheriff Court Act 1876, to have a factor appointed to take charge of the farm of Moss-side, of which the pursuer was tenant. In that process it was averred by Mr More Nisbett that the pursuer had deserted his farm and was absent without leaving anyone in charge and without having left information as to his whereabouts. On these statements, and on the day the petition was presented, the Sheriff-Substitute, without ordering any service of the petition, appointed William Robb judicial factor on the farm. Robb was called in the present action for his interest. The Sheriff Court Act 1876 (39 and 40 Vict. cap. 70) provides by sec. 8 that the induciœ in all petitions where the defender is within Scotland shall be seven days, and fourteen days where he is furth of Scotland. By sub-sec. 2 it is provided that the Sheriff may “shorten the warning or induciœ as he shall see fit in any case which he considers to require special despatch.” The Act of Sederunt anent removings of 14th December 1756 provides by the 5th section for the removing of a tenant “who … shall desert his possession or leave it unlaboured at the usual time of labouring.” The pursuer maintained that the statements of the defender in the petition above referred to were unfounded in fact, and that he had not deserted his farm, and that in any case the proceedings in the petition were incompetent in respect that there had been no intimation of its being presented, and no inquiry into the necessity of making the appointment.
The facts disclosed on a proof taken by the Lord Ordinary were that the pursuer had left the county to avoid his creditors, and had when he left no intention of returning at any particular time, but was looking out for a suitable opening in America. Further, it was proved that no damage had resulted from the appointment of the factor, and that his appointment had been made with the approval of the tenant's wife, who had been left upon the farm without money to carry it on or to meet the rent.
The Court in these circumstances refused to entertain the objections to the competency of the petition, and assoilzied the defenders.
Counsel for Pursuer— Scott—Lang. Agent— William Paterson, L.A.
Counsel for Defenders— Dundas. Agents— Dundas & Wilson, C.S.
