National Commercial Bank of Scotland v Arcam Demolition & Construction Ltd & others & Hatherley Hall Ltd [1966] 2 QB 593
Judgment was entered by the plaintiff against several defendants including a Mr Campbell. A sheriff called to enforce a writ at Campbell's home. He would not sign walking-possession as Hatherley Hall Ltd claimed ownership of his household contents. The sheriff revisited several times over the next month and then on January 24th 1966 managed to persuade Mrs Campbell to sign the possession agreement.
The next day her husband wrote to the sheriff's officer stating that his wife had no authority to sign.
The sheriff initiated interpleader proceedings so that the Court could decide Hatherley Hall's claim to the household contents. They argued that possession had been abandoned when the wife signed the agreement, but the Court dismissed the claim and Hatherley Hall appealed.
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 Bagshawes Ltd. v. Deacon.
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 December 14th, 1965, to January 24th, 1966. But then something happened which is said to amount to an abandonment of possession.
It happened in this way: On January 24, 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 that 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 paper: and he wrote and informed the bailiff. Hatherley Hall Ltd. wrote to the sheriff’s solicitors saying that Mrs. Campbell had no right to sign anything.
It was at one time thought that, in order to retain possession, the bailiff, as the sheriff’s officer, must actually remain in the house with the goods. He used to sit down in the kitchen 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 as 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-possession." This has become so universal a practice that a form has been prescribed for "walking-possession" such as to entitle the sheriff to fees: see the Sheriffs' Fees (Amendment) Order 1956.
This form is so framed as to be signed by the judgment debtor, who would be the person usually in charge of the goods. It reads:
"I hereby request that you will not leave a bailiff on my premises in close possession of the goods which you have seized under the above warrant of execution. If this convenience is allowed to me, I undertake, pending the withdrawal or satisfaction of the warrant:
(a) not to remove the said goods or any portion thereof nor to permit their removal by any persons unauthorised by you in that behalf;
(b) to inform any county court bailiff or other persons who may enter my premises for the purpose of levying any other execution or distress that you are already in possession of my goods under the above warrant;
(c) to inform you immediately at your office of the visit of any such county court bailiff or other persons for the purposes of levying as aforesaid."
But I do not think it necessary, in point of law, for the agreement to be made by the judgment debtor himself. It is sufficient if it is made by any responsible person in the house... (continued in same style for full transcript)
1. It explains how walking-possession agreements work, and concludes any "responsible person" can sign one, even a spouse.
2. A bailiff can choose such a person to be in possession.
3. The purpose of a walking-possession is preventing seized goods from being removed.
4. This case is contrasted with Lumsden v Burnett [1898], Lloyds & Scottish Finance Ltd. v Modern Cars & Caravans (Kingston) Ltd [1966], and H v Sandwell MBC [1992].