Scottish Court of Session Decisions

This was an action of damages at the instance of James Wallace Thom, a confectioner and medicated lozenge manufacturer in Aberdeen, against Francis Andrew, auctioneer and valuator there.

The pursuer averred—(Cond. 2) “By missive of lease dated 31st December 1887 the defender let to the pursuer the shop 47 Broad Street, Aberdeen, at a weekly rent of £2, for a period not to exceed three months, unless otherwise agreed upon between the parties; entry to be given on 31st December 1887.”…(Cond, 3)

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“The pursuer duly entered into possession of said shop, and expended a considerable sum of money upon fitting it up for the purposes of his business.… The pursuer's business was conducted therein in a prosperous manner up till the evening of Tuesday, 31st January 1888.” … (Cond. 4) “No agreement was come to between the pursuer and defender to terminate the lease sooner than the stipulated period of three months from 31st December 1887, and no intimation was given by the defender to the pursuer that he desired it to be terminated sooner.” (Cond. 5) “On the evening of said 31st January 1888, the said shop was closed and secured in the customary way, and the key taken possession of by the pursuer. … The defender sometime between midnight of 31st January and six o'clock the following morning, 1st February 1888, went to the said shop with joiners and other men, and without giving the pursuer any intimation or warning, forcibly and illegally broke into and entered the said shop, breaking open a wooden partition at the back thereof, or otherwise.” …(Cond. 6) “After the defender and those acting on his instructions had affected a forcible entrance into the said shop as aforesaid, he and they illegally, and without any warrant or authority whatever, lifted and carried out into the street the whole contents thereof, embracing shop-fittings, iron safe, manufacturing machinery and plant, drawings, Ac. The shelving which had been fitted up by the pursuer in said shop was also torn down and removed. After the whole contents of the shop had been taken out into the street by the order and instructions of the defender, they were placed upon three lorries, which were brought there by him, and were carried away by the defender, who illegally and unwarrantably retains possession thereof, and refuses or delays to return the same to said shop, although he has been requested to do so by the pursuer.” (Cond. 9) “By the said illegal and unwarrantable action of the defender in forcibly breaking open the pursuer's said shop and illegally carrying away and detaining the whole contents thereof as aforesaid, the pursuer has not only sustained loss and damage to the amount of the value of said contents, but he has suffered in his feelings and has been subjected to much anxiety and inconvenience; his trade has been suddenly put a stop to, and his credit and reputation have been seriously injured.” …

The defender admitted that he had let the shop to the pursuer, but averred that the agreement between them was contained in a missive, which was in these terms—“Aberdeen, Dec. 31st, 1887.—I hereby let the front part of shop occupied by me at 47 Broad Street, Aberdeen, reserving to myself the back part measuring 20 feet or thereby, at the weekly rent of Two pounds sterling per week, paid in advance, and the occupancy to be monthly if so wanted by either party, and we the undersigned, agree to the above agreement. (Signed) E. Andrew. James W. Thom.” He also admitted “that on 1st February 1888 the defender removed from the premises which had been let by him to the pursuer the pursuer's effects therein, and deposited them with Mr M'Adam, carting contractor, North Charlotte Street, Aberdeen, for safe custody.” This he on the same day intimated to the pursuer. He further averred—“On 9th January 1888 the defender gave the pursuer warning to remove in the following terms:—‘9th January 1888. 47 Broad Street, Aberdeen. Mr James W. Thom, 47 Broad Street, City. Sir,—I hereby intimate that I require you to remove from my shop No. 47 Broad Street, let to you for the present month, and that on or before 31st January current.— Yours truly (Signed) Francis Andrew.”

The pursuer pleaded—“The defender having illegally, unwarrantably, and forcibly broken open the pursuer's said shop, taken possession of and carried away the whole contents thereof belonging to the pursuer, and paralyzed his business, is liable in damages therefor, and decree should be granted as concluded for, with expenses.”

The pursuer pleaded—“The defender having illegally, unwarrantably, and forcibly broken open the pursuer's said shop, taken possession of and carried away the whole contents thereof belonging to the pursuer, and paralyzed his business, is liable in damages therefor, and decree should be granted as concluded for, with expenses.”

The defender pleaded—“(1) The pursuer being an undischarged bankrupt, should ante omnia be ordained to find caution.”

Upon 6th March 1888 the Lord Ordinary ( Lee) pronounced this interlocutor—“In respect it is stated that the pursuer is an undischarged bankrupt, appoints intimation of the dependence of this process to the trustee on his sequestrated estate, in order that he may, if so advised, sist himself as a party to the action within ten days.”

The trustee refused to sist himself, and then the Lord Ordinary on 13th March 1888, in respect of this declinature, ordained the pursuer to find caution for expenses by the first box day in the ensuing vacation. The adjustment of the record was continued, and upon 18th May the pursuer, not having yet found caution, was allowed eight days to do so.

On 29th May the Lord Ordinary pronounced the following interlocutor—“ In respect the pursuer has failed to find caution for expenses, assoilzies the defender from the conclusions of the summons, and decerns: Finds the defender entitled to expenses.”

The pursuer reclaimed.

The defender cited Clarke v. Muller, Jan. 16, 1884, 11 R. 418.

At advising—