Scottish Court of Session Decisions

On 25th April 1881 John Ferguson, banker, Carnwath, presented a petition in the Sheriff Court at Lanark against James Logan, who carried on lime-works at his farm of Eastshield, for payment of an account for certain seeds and manure supplied to him. Logan lodged defences, but on 28th May following died while the action was in dependence. In July, John James Dyer, solicitor, Edinburgh, was appointed judicial factor on his trust-estate, the trustees named by the truster having failed.

The present petition was also presented in the Sheriff Court at Lanark by John Ferguson, and in it the pursuer prayed the Court to transfer the original petition against James Logan on 25th April 1881, to the effect that the pursuer might have such action and execution against the said John James Dyer, defender, as judicial factor on said estate, as he would have had against the said deceased James Logan during his lifetime, or as he might have had against him were he still in life.

The defender was personally cited.

The pursuer pleaded—“The defender being the judicial factor on the estate of the said deceased James Logan, the process and action by the pursuer against the said James Logan should be transferred against him as judicial factor aforesaid, and he should be decerned to pay the amount concluded for in said action as judicial factor aforesaid. The defender is subject to your Lordship's jurisdiction in respect he carries on the business of the late Mr Logan in Lanarkshire as farmer at Eastshield.”

The defender explained in reply that he did not reside within the jurisdiction of the Sheriff of Lanarkshire and could not competently sist himself as defender in the principal action, and on the same ground he further pleaded that the present action of transference was incompetent.

He pleaded—“In respect the defender does not reside within your Lordship's jurisdiction, the action of transference is incompetent, and ought to be dismissed with expenses.”

By 39 and 40 Vict. c. 70, sec. 46 (The Sheriff Courts (Scotland) Act), it is enacted as follows—“A person carrying on a trade or business and having a place of business within a county shall

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be subject to the jurisdiction of the Sheriff thereof in any action, notwithstanding that he has his domicile in another county, provided he shall be cited to appear in such action either personally or at his place of business; it shall, however, be in the power of the Sheriff aforesaid, upon sufficient cause shown, to remit any such action to the Court of the defender's domicile in another sheriffdom.”

The Sheriff-Substitute ( Birnie), after hearing parties on the question of jurisdiction, allowed a proof. There were cited at the hearing the cases of Cameron v. Chapman, March 9, 1838, 16 S. 907; and M'Bey v. Knight, Nov. 22, 1878, 7 R. 255. Thereafter the Sheriff-Substitute found that the defender had collected in Edinburgh the accounts due to, and paid accounts due by, the factory estate; found in law that he was not carrying on a trade or business, and had not a place of business, at Eastshield within the meaning of the Sheriff Courts (Scotland) Act 1876; found that he was not within the jurisdiction of this Court, and therefore dismissed the action of transference.

On appeal the Sheriff-Depute ( Clark) found “That the late Mr Logan carried on the business of a farmer in Lanarkshire, and that an action was sometime ago raised against him by the pursuer in relation to claims affecting the said business: Found that after the said action had made some progress Mr Logan died, and the present defender was duly appointed judicial factor on his estate, and now represents the deceased in so far as those having claims thereon are concerned: Found that the present action of transference had been raised against him by the pursuer in virtue of the provisions contained in the 46th section of the late Sheriff Court Act: Found that on a sound construction of the said provisions the defender must be held as carrying on the business of farming, and having a place of business for that purpose, at the foresaid farm in Lanarkshire, although his domicile is in another county, and that he had been duly cited personally in terms of the said provisions: Therefore found he was subject to the jurisdiction of this sheriffdom: Recalled the interlocutor appealed against, and granted decree of transference as craved, and decerned.”

He added this note—“This case was very ably debated, and at first sight did not appear to be free from difficulty. On full consideration, I have, however, come to be of opinion that the provisions of section 46 of the Act must be held as applying to a case such as the present, unless their effect was to be much more restricted than appears to have been intended by the Legislature. It may simplify the case if we first consider whether the Act would have been applicable if the original defender Logan had been resident in Edinburgh but carried on the business of a farmer in Lanarkshire, and had been personally cited. Now, if in such a case all his connection with the Lanarkshire farm had been some interest in the profits, joint or several, and if in no proper sense he could be said to carry on the business of the farm, much might be argued against the application of the Act. But if he were the real acting farmer, and bona fide carrying on the business of the farm in the same sense as a manufacturer or lessee of minerals carries on his business though resident in another county, the case becomes very different. To hold that in such circumstances the Act would not apply would be practically to destroy its application in cases where it might be most necessary. It is suggested that farming is not a trade or business in the sense of the Act. It may not perhaps be a trade, but in the present day it seems to be a business, just as much as any other calling not properly a profession can be described as a business. The object of the Legislature was plainly to enable business creditors to recover their debts with as much despatch and at as little cost as possible. Now, in the present day, farmers stand in the same relation to those who furnish them with implements or artificial manures as do tradesmen to the merchant who provides them with iron, leather, or cloth. I see no reason for dealing differently with the creditor in the former case than with the merchant in the latter. I cannot, therefore, doubt that the deceased Mr Logan would in the supposed circumstances have been subject to the jurisdiction of this Court in virtue of the provisions of section 46.

“Does the judicial factor appointed on his estate stand in any different position?

If the deceased carried on business in Lanarkshire, his representative, the factor, must also be held to do so for the purpose of winding-up. He is not, indeed, resident in Lanarkshire, but neither ex hypothesi was Logan; but he just as much as Logan has quoad hoc a place of business in Lanarkshire till the estate is wound-up, to wit, the farm-steading in question. He also has been personally cited. That he resides in another county is his own affair. He is not a foreigner, nor does he de facto reside abroad. There is therefore no question as to the necessity of founding jurisdiction so as to bring him within the sphere of the Scotch Courts. He is not even in the position of an executor unconfirmed. His title is of the strongest kind, both active and passive. The only point is, whether he is liable to be convened in Lanarkshire, or must be proceeded against in the Midlothian Sheriff Court, or in the Supreme Court? Now, if this action had been an original action, the pursuer might have suffered great hardship if he were compelled to raise it out of the county. That hardship, however, becomes much intensified when it is considered that the action has already been for some time in dependence, and the present procedure is merely that of transference. On these grounds I am unable to read the provisions of section 46 otherwise than as applicable to a case of the present kind. The cases referred to by the Sheriff-Substitute do not seem to me to be in point. They deal with questions and a state of matters entirely different, namely, where the defender was resident abroad, and where, therefore, the provisions of the 46th section of the Act could have no application.”

The defender appealed, and argued—The 46th section of the above Sheriff Court Act did not apply to the defender's case. He had merely in his capacity of judicial factor realised the moveable estate of the deceased by selling the stock and cropping. Vide Lord Gifford in M'Bey v. Knight, Nov. 22, 1879, 7 R. 255; Wilson's Sheriff Court Practice, p. 65.

The pursuer replied—Even before the Sheriff-Court Act of 1876 the defender could have been sued at common law. Vide Black v. Duncan,

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Dec. 18,1827, 6 S. 261. The above Act only gave effect to this case, and according to a sound construction of the Act the defender was subject to the Sheriff's jurisdiction.

The Lords made avizandum with the case.

At advising—