Scottish Court of Session Decisions

In the spring of 1860 James Murray, agent, Jamaica Street, Glasgow, entered into an agreement with J. & J. Bernard, brewers, Edinburgh, to become sole agent for them in Glasgow and certain other places. By the eighth article of the agreement it was provided, that “The said James Murray shall he furnished by the said Thomas & James Bernard with a proper set of books, consisting of ledger, cash, cask, and order books, into which all entries connected with this agency shall be regularly made; and the said books shall belong to and remain the property of the said Thomas & James Bernard.” It was further provided that, notwithstanding the acceptance by Murray of bills drawn upon him by T. & J. Bernard, the right of property in the accounts of the customers was to remain with T. & J. Bernard, Murray having the right of collecting and recovering outstanding accounts, except only in the event of his failing to return the bills, or of his death, bankruptcy, or insolvency.

Murray was furnished with books, and acted as agent for the respondents until April 1867. The respondents then presented a petition in the Sheriff-court of Glasgow, stating that Murray had ceased to act as their agent, and that they had appointed another agent, Macgregor, in his place; that it was indispensable that Macgregor should have possession of their books and papers to enable him to conduct the business, that they had applied to Murray for the books, undertaking to give him all reasonable access to them for any lawful purpose, but he declined either to give up the books or to allow access to them. They accordingly craved delivery of the books, they giving Murray such access to them as he might require.

Murray contended that he was entitled to retain the books in question until the outstanding debts had been fully recovered, and an accounting had taken place between him and the petitioners. He alleged that during the continuance of the agreement he had, with consent of the petitioners, conducted a separate business of his own, the transactions of which were recorded in the same set of books, with the knowledge and consent of the petitioners. Meantime he was willing to give access to the books.

The Sheriff-substitute ( Galbraith), after a proof, held that there was no evidence that, on termination of his agency, Murray was bound to deliver up the books to enable the petitioners to keep together the business he had formed for them; that possession of them was indispensable in order that he might collect the outstanding debts for which he had become responsible; that he had no authority so to use the books as to give him a right of property in them; bnt that the petitioners, although the property of tho books was in them, were not entitled to delivery of them until the purposes of the agreement were carried out.

The Sheriff ( Bell) recalled, and held that the books having been all along the property of the petitioners, and there being no stipulation in the articles of agreement that Murray was to have a right of retention of the books for any purpose after his agency had ceased, the petitioners were entitled to reclaim possession of them when that event happened, the more especially as they could not carry on their business satisfactorily, either by themselves or by a new agent, without these books, and as they offered to give Murray access to the books at all reasonable times, until the accounts contracted through him were collected.

Murray advocated.

Pending the advocation, T. & J. Bernard presented a petition to the Sheriff, setting forth the statute 6 Geo. IV., c. 120, sec. 42, which enacts “That in all advocations of interlocutors pronounced by Sheriffs, it shall be competent to the Inferior Judge to regulate, in the meantime, on the application of either party, all matters regarding interim possession, having due regard to the manner in which the mutual interests of the parties may be affected in the final decision of the cause.” That by sections 130 and 146 of the Act of Sederunt of 10th July 1839, it is likewise made competent to the Sheriff to regulate all matters respecting interim possession, as aforesaid. And craving the Sheriff to ordain the respondent to deliver up to the petitioners the business books belonging to them, before enumerated, or such of them as your Lordship may consider the petitioners are entitled

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to immediate delivery of, pending the result of the said advocation.”

The Sheriif-substitute dismissed the petition, as craving an inversion of the state of possession. The Sheriff adhered, pronouncing this interlocutor:—“Finds, that whilst the petition narrates the Statute and Act of Sederunt by which it is made competent for Sheriffs in all advocations of interlocutors pronounced by them, to regulate all matters regarding interim possession, it does not pray generally that the Sheriff shall so regulate, but concludes only that the respondent be decerned and ordained to deliver up to the petitioner the business books pending the result of the advocation, the right to the possession of which books forms the subject of the original action to be adjudicated on in said advocation: Finds, that to grant such conclusion would be to enforce in the meantime the decision which has been advocated, and such immediate inversion or transference of possession would be more than what can be fairly understood to be meant by the regulating of interim possession: Finds that it was stated for the petitioner at the debate, that if the Sheriff took the above view, he (the petitioner) would be content with an order on the defender to place the books in neutral custody; but finds that there is no such conclusion, either primary or alternative, in the petition, and as the defender has consequently not had an opportunity of meeting it in the closed record, it cannot be competently entertained incidentally under the present application:—Therefore adheres to the interlocutor appealed against, and dismisses the appeal, but this under reservation of the petitioner's right to present a new petition, with a different conclusion or conclusions regarding the regulation of interim possession.”

T. & J. Bernard advocated.

The two advocations were discussed together.

Balfour for Murray.

Asher for T. & J. Bernard.

The Court adhered in both advocations, holding in the first advocation that the agents merely had possession of, and not property in, the books in question, and that the employers, as having the greater interest in the books, were entitled to recover them for the purposes of their business; but holding in the second advocation that the petition for immediate delivery had been rightly dismissed.