Wyllie v. Fisher [1907] ScotLR 506 (12 March 1907)

Wyllie v. Fisher [1907] ScotLR 506 (12 March 1907)

A sheriff officer acting as agent for a creditor is entitled to poind effects already sequestrated for rent, provided he does not sell or remove them. Interdict and expenses cannot be awarded against the sheriff officer unless he has shown intention to perform an illegal act. In this case, as no such intention was shown, the appeal succeeded and the sheriff officer was assoilzied with expenses.

Citation
[1907] ScotLR 506
Parties
Pursuer/respondent: Miss Mary Ann Wyllie; Defender: Eli Zive; Defender/appellant: James Fisher
Jurisdiction
Scotland
Judgment Date
12 March 1907
Procedural Posture
Appeal (civil) / Appeal From Sheriff Court to Court of Session Inner House, First Division
Outcome
Appeal allowed in favour of Fisher; interlocutors recalled; Fisher assoilzied; Fisher awarded expenses in both courts.
Legal Topics
Diligence, Poinding, Sequestration for Rent, Interdict, Expenses, Principal and Agent Liability
Civil Procedure Property Law Diligence Poinding Sequestration for Rent Interdict Expenses Principal and Agent Liability

Case Brief

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Parties

Miss Mary Ann Wyllie

Pursuer/respondent

Eli Zive

Defender

James Fisher

Defender/appellant

Procedural Posture

Appeal (civil) / Appeal From Sheriff Court to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether a personal creditor may poind effects already sequestrated for rent
  2. 2 Whether interdict and expenses may be awarded against a sheriff officer who has not shown intention to sell or remove poinded goods
  3. 3 Whether appeal on expenses alone is competent

Ratio Decidendi

A sheriff officer acting as agent for a creditor is entitled to poind effects already sequestrated for rent, provided he does not sell or remove them. Interdict and expenses cannot be awarded against the sheriff officer unless he has shown intention to perform an illegal act. In this case, as no such intention was shown, the appeal succeeded and the sheriff officer was assoilzied with expenses.

Court Disposition

Appeal allowed in favour of Fisher; interlocutors recalled; Fisher assoilzied; Fisher awarded expenses in both courts.

Orders

  • Interlocutors of Sheriff-Substitute and Sheriff recalled as regards Fisher.
  • Fisher assoilzied from conclusions of the action.