National & Commercial Bank of Scotland Ltd v Arcam Demolition and Construction Ltd and Hatherley Hall Ltd
| Jurisdiction | England & Wales |
| Judge | The Master Of The Rolls,LORD JUSTICE DAVIES,Lord Justice Russell |
| Judgment Date | 08 June 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0608-2 |
| Court | Court of Appeal |
| Date | 08 June 1966 |
[1966] EWCA Civ J0608-2
In The Supreme Court of Judicature
Court of Appeal
From Master Elton
The Master of the Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
Mr Leonard Lewis (instructed by Messrs Coles & Stevenson) appeared as Counsel for the Appellants (Claimants).
Mr J. Ellison (Instructed by Messrs Parlett, Kent & Co.) appeared as Counsel for the Respondents (Plaintiffs).
Mr M. B. Musgrave (instructed by Messrs Taylor & Humbert) appeared as Counsel for the Sheriff.
We need not trouble you, Mr Ellison.
In this case the National Commercial Bank of Scotland obtained judgment against a number of defendants for the sum of £25,000. One of the defendants was Mr Archibald James Campbell. The bank sought to execute on his property. They issued a writ of fi. fa. On the 14th December, 1965, the bailiff went to a house which was occupied by Mr and Mrs Campbell at Old Colwall, near Malvern, and took possession of goods there, which he believed to be the property of Mr Campbell. When the bailiff took possession, a claim was made to the goods by a Company called Hatherley Hall Ltd. This was a Company which was owned by Mr Campbell's father-in-law, by which I mean he owned the shares in it. This Company claimed the goods on the ground that Mr Campbell had sold them to the Company for £960 shortly before the judgment was given against him.
The sheriff could not, of course, sell the goods until the claim had been determined. So he had to take out an interpleader summons to determine the issue. Meanwhile he had to remain in possession of the goods: because if he abandoned possession, the goods would cease to be in the custody of the law: and the Company, Hatherley Hall Ltd., would be able to take possession of them as purchasers, free of the claim of the judgment creditor, see Blades v. Arundale (1813) 1 M. & S. 711; Bagshawes Ltd. v. Deacon, 1898, 2 Q.B. 173. Accordingly, the sheriff, by the bailiff, was under a duty to retain possession. He invited Mr Campbell to sign a document agreeing to "walking possession". But Mr Campbell refused to sign it. So the bailiff had to remain in possession. He did not actually stay in the house. But he did what was. I think, sufficient to retain possession. He visited the premises frequently and made sure that the goods were safely there and not removed. He did this from the 14th December, 1965, to the 24th January, 1966. But then something happened which is said to amount to an abandonment of possession.
It happened in this way: On the 24th January, 1966, the bailiff went to the house. He saw the wife, Mrs Campbell. She had a houseful of children there and did not want the bailiff about the place. The bailiff told her that she could avoid it by signing a paper agreeing to give him "walking possession". She said she ought to speak to her solicitors and then the bailiff said that it did not matter so long as the furniture was not going to be moved. She said she did not want to move the furniture as she was using it all. She read the paper and signed it. The bailiff left a copy with her and went away. When Mr Campbell came home, he repudiated what his wife had done. He said that she had no authority from him to sign the papers and he wrote and informed the bailiff. Hatherley Hall Ltd. wrote to the sheriff's solicitors saying Mrs Campbell had no right to sign anything.
On the next day, 25th January, 1966, the sheriff took out an interpleader summons asking the Court to determine whether the judgment creditors or the Company, Hatherley Hall Ltd., were entitled to the goods. The summons was adjourned on one or two occasions and eventually came on for hearing on the 29th April, 1966. Meanwhile from the 24th January, 1966, to the 29th April, 1966, the bailiff did not visit the house or inspect the goods. He seems to have relied on the document signed by Mrs Campbell as giving "walking possession". At the hearing of the summons Mr Lewis, appearing for Hatherley Hall Ltd., contended that the sheriff abandoned possession. The document, he said, was useless because it was not authorised by Mr Campbell, nor by the claimants, Hatherley Hall Ltd. The Master overruled this contention and barred the claimants, Hatherley Hall Ltd., from the goods. They now appeal to this Court contending that the sheriff abandoned possession.
It was at one time thought that, in order to retain possession, the bailiff, as the sheriff's officer, oust actually remain in the house with the goods. He used to sit down in thekitchen and make himself at home. But that has long since been regarded as unnecessary. It is sufficient if he visits the house frequently to make sure that the goods are safely there and not removed. He then still retains possession. But he need not even do an much as that - he need not visit the house if he gets an agreement by some responsible person in the house to see that the goods are not removed, After getting such an agreement, he is said to take "walking possession01 see Lumsden v. Burnett, 1898, 2 Q.B. 177; Watson v....
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