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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Armstrong v. Forbes [2004] ScotCS 355 (03 October 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/355.html Cite as: [2004] ScotCS 355 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Osborne Lord Wheatley
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A5544/01 OPINION OF THE COURT delivered by LORD MARNOCH in RECLAIMING MOTION FOR PURSUER in the cause MARY VANCE ARMSTRONG Pursuer and Reclaimer; against ROBERT LINDSAY FORBES, C.A., judicial factor on the sequestrated estates of G. DUNLOP & SON Defender and Respondent; _______ |
Act: Bovey, Q.C.; Anderson Strathern (Pursuer and Respondent)
Alt: Sandison; Morisons (Hewats, Castle Douglas) (Defender and Reclaimer)
26 September 2003
[1] This is a reclaiming motion from an interlocutor of the Vacation Judge whereby he suspended, ad interim, a Sheriff Court decree and granted interim interdict against the defender evicting the pursuer from the farmhouse occupied by herself and her three daughters. The first ground of appeal is that the Lord Ordinary was in error in applying the principle of Yuill's Trustees 1902 4 F. 815 to the estate of a partnership which has been sequestrated by the court and on which a judicial factor has been appointed. While we think there may be some force in that contention we consider, however, that the underlying approach of the Lord Ordinary in this matter was that the pursuer should be given an opportunity of demonstrating that it was unnecessary for the judicial factor to realise the dwellinghouse in question. In that connection, it appears that an offer was made on her behalf to pay in to the factory estate any liquid capital that was required to "ensure" its solvency. In support of a decision ad interim, that general approach cannot, we think, be faulted. As regards the other grounds of appeal, we are of opinion that nothing Mr. Sandison has said demonstrates that the Lord Ordinary clearly erred either in his appraisal of the relevant issues or in the final exercise of his discretion in what he, himself, recognised was a most difficult case. [2] This reclaiming motion will accordingly be refused. We would add, however, for the avoidance of doubt, that nothing we have said precludes the defender from enrolling a motion for recall of the interim interdict at any stage. Indeed, from some of what has been said to us it appears that there may well have been a change in the circumstances of parties since the interim interdict was pronounced.