Brember v Rutherford
| Jurisdiction | Scotland |
| Judgment Date | 01 November 1901 |
| Docket Number | No. 17. |
| Date | 01 November 1901 |
| Court | Court of Session |
Lord Young, Lord Trayner, Lord Justice-Clerk.
DiligencePartnershipDecree against a firm.
Held that a decree against a firm is not a warrant for a charge against a person who is not a partner (although he may he liable for the debt for which the charge is given as having held himself out to be a partner).
On 11th December 1900 John Rutherford, joiner, Annan, obtained decree in absence in the Small-Debt Court at Dumfries, against Brember & Company, chemists, 134 High Street, Dumfries, for 9,10s., being the amount of an account for tenant's fittings executed in the shop 134 High Street, Dumfries, in May and June 1900.
On 8th January 1901 William Brember, hotelkeeper, Strathaven, was charged as one of the partners of Brember & Company, above designed, as such partner and as an individual to implement this decree.
Brember presented a note of suspension. The note was passed and a record was made up.
The complainer averred that he was not, and never had been, a partner of the firm of Brember & Company, and that he was not in any way responsible for their obligations. The complainer pleaded, inter alia;(1) There being no warrant for the execution of diligence at the instance of the charger against the complainer, the proceedings complained of should be suspended.
The respondent averred that the complainer either was in fact a partner of Brember & Company or had held himself out as such. The respondent pleaded, inter alia;(3) The complainer having by his actings held himself out as (1) owner, and (2) as partner of said business, and the respondent having relied on his name and credit as such owner and partner, the note should be refused.
On 28th March 1901 the Lord (Stormonth-Darling) after a proof pronounced this interlocutor:Sustains the third plea in law for the respondent. Finds the charge orderly proceeded; refuses the note of suspension, and decerns: Finds the respondent entitled to expenses; allows, &c.*
The complainer reclaimed.1
Lord Young.I have read the judgment of the Lord Ordinary, and have given my best attention to the arguments for and against the suspension. My opinion is that this charge against the present suspender cannot be sustained. It is a charge on a decree in absence, not against the suspender, but against a firm of the name of Brember & Company. The Lord Ordinary holds it to be proved that if there ever was such a company, the suspender was not a partner of it. I agree with...
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