Scottish Court of Session Decisions

The pursuers, Millar and Baird, were creditors of one Thomas Muir head, shopkeeper in West Calder, by bill, for £47, 16s. 2d., on which they raised diligence, and executed a poinding on the 9th of May, 1832, and, on the 12th, they obtained a warrant of sale, which they intimated for the 28th. In the mean while, on the 20th, a petition was presented to the Sheriff of Edinburgh by the defender, Rae, a solicitor, in name of Walter Miller, proprietor of the premises occupied by Muirhead, as tenant, praying for sequestration, as for £29 of rent alleged to be due, and current, and for an interdict against the sale by Miller and Baird. The Sheriff granted warrant to sequestrate, ordered intimation, and, in the mean time, interdicted the sale. The petition and deliverance were intimated to Miller and Baird, but they made no compearance; and, on the 13th June, warrant of sale was granted. Muirhead being in bankrupt circumstances, had absconded on the 25th May; and his father, who was creditor to a considerable amount, thereafter proceeded with diligence, obtained warrant of sale, and sold his son's effects for behoof of the creditors generally, no further steps having been taken under the sequestration. It afterwards turned out that the subscription of the landlord to the mandate for applying for sequestration (which mandate had been written out by Rae, and, as he alleged, given to Muirhead to take out to the landlord for his signature, and which had thereafter been transmitted by post to Rae, who had had no personal intercourse with the landlord), was forged. It also appeared that, instead of £29, there was only due the landlord £7, which he was allowed to receive as a preferable debt, from the proceeds of the sale by Muirhead's father; no intimation, however, of his not having authorized the sequestration having been made to Rae till after the whole proceedings above detailed had taken place, and this payment had been received.

Miller and Baird now sued Rae for the loss and damage sustained by them in having been cut out of their preference, including the value of their debt, and the expenses incurred by them under their diligence.

Rae did not admit, in his defences (though he afterwards did so on the trial), that the landlord's signature was forged; and he pleaded, that he had acted bona fide in the belief that the mandate was signed by Miller; and, further, that the pursuers had suffered no damage, because old Muirhead's poinding would have come in pari passu with them; and, at all events, that any loss was owing to their own carelessness. The following issue was sent to trial:—

“Whether, on or about the said 25th day of May, 1832, without authority from the said Walter Millar, the defender wrongfully applied for, and obtained from the Sheriff of the county of Edinburgh, and used against the pursuers, a warrant sequestrating the said goods for rent alleged to be due by the said Thomas Muirhead to the said Walter Millar, and interdicting the pursuers from proceeding with the said poinding, to the loss, injury, and damage of the pursuers?”

The evidence established the facts above detailed, and

The Jury found for the defender.