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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Manson's Trustees v. Forsyth [1883] ScotLR 21_167 (1 December 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/21SLR0167.html Cite as: [1883] ScotLR 21_167, [1883] SLR 21_167 |
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Page: 167↓
[Sheriff of the Lothians.
A petition to interdict a sale by a creditor under a poinding having been presented in a Sheriff Court by the trustees under a postnup tial contract of marriage entered into by the debtor, on the ground that the articles poinded belonged to the petitioners as trustees, the Sheriff-Substitute granted interim interdict on condition of the petitioners finding caution for the debt and expenses. They appealed to the Court of Session. Held that the appeal was incompetent.
George Thomson, James Storm Fraser, and Mrs Mary Miller or Manson, presented a petition in the Sheriff Court at Edinburgh to interdict David Forsyth, S.S.C, “from carrying out a sale under a debts recovery decree obtained by him in the Sheriff Court of the Lothians and Peebles at Edinburgh against Joseph Manson, leather merchant, of certain articles of furniture and other effects situated within the dwelling-house in No. 3 Cochran Terrace, Edinburgh, occupied by the said Joseph Manson, and which furniture and effects belong to the pursuers in trust under a postnuptial contract of marriage executed by Joseph Manson and Mrs Mary Miller or Manson, his spouse, and of which the pursuers duly and validly got possession and delivery, and in the meantime to grant interim interdict.” They averred that they as trustees were proprietors of the furniture, and had obtained possession of it by virtue of the marriage-contract, and of an instrument of possession thereon; that the defender having obtained decree in the Debts Recovery Court at Edinburgh on 22d October 1883 against Joseph Manson for the sum of £13, 5s. 6d. sterling of principal, with £2, 15s. 9d. of expenses, had executed a poinding of the furniture or other effects within No. 3 Cochran Terrace, of which they were proprietors. They pleaded that the articles of furniture being their property they were entitled to interdict, and in the meantime to interim interdict.
The Sheriff-Substitute ( Hamilton), after hearing parties' procurators, pronounced this interlocutor:— “On the pursuers finding good and sufficient caution acted in the Sheriff Court Books
Page: 168↓
of Mid-Lothian, to the extent of forty pounds sterling, within six days from this date, for the debt and expenses, as these may be ascertained, that may be due to the defender in the event of the pursuers being ultimately found to be in the wrong in the present proceedings, grants interim interdict as craved until the further orders of the Court.” The pursuers appealed to the Court of Session against the order to find caution, on the ground that they as trustees were not the defender's debtors, and were not bound to find caution.
The defender objected to the appeal as incompetent in respect that it was not a final judgment disposing of the merits of the cause. It was appealable to the Sheriff-Principal, but not to the Court of Session—Sheriff Courts Act 1853, sec. 24; Court of Session Act 1868, sec. 53; Sheriff Courts Act 1876, sec. 27.
The pursuers replied—The judgment was one imposing on them a condition which they could not fulfil, and which was improperly imposed on them. It was a judgment disposing of the merits of the cause as far as they were concerned, and therefore appealable.
The Court dismissed the appeal as incompetent, and found the pursuers liable in expenses, and modified the same to £2, 2s.
Counsel for Pursuers (Appellants)— Campbell Smith. Agent— A. Nivison, Solicitor.
Counsel for Defender (Respondent)— Rhind. Agent—Party.