Scottish Court of Session Decisions

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), section 71, enacts—“ Judgment by Sheriff as to Trustee Final.—The judgment of the Sheriff declaring the person or persons elected to be trustee or trustees in succession shall be given with the least possible delay; and such judgment shall be final, and in no case subject to review in any court or in any manner whatever.”

At a meeting of creditors, held at Perth on 27th January 1906 for the purpose of electing a trustee or trustees on the sequestrated estates of Thomas Warrand Farquharson, of Cammock and Whitehills, Glenisla, votes to the value of £971, Is. Id. were given for John Yeaman, solicitor, Alyth, and to the value of £581, 10s. 5d. for John Little, solicitor, Perth. Objections were taken to a number of the votes and, inter alia, to a number given for Yeaman on the ground that the Justice of the Peace before whom the oaths bore to have been taken was a “solicitor” and a “procurator in an inferior court,” contrary to 6 Geo. IV, c. 48, section 27. The Sheriff-Substitute ( Sym) sustained this objection, and after a scrutiny of the votes, by interlocutor of 13th February 1906 found Little to be in a majority, and declared him elected trustee. Against this interlocutor Yeaman now brought an appeal in the First Division.

It appeared that among the votes for Yeaman objected to by Little was one by a Mr George Gordon, ironmonger, Alyth, on the sum of £55, Is. 3d. Gordon's name did not appear in the minutes of the meeting of creditors as having voted for Yeaman, but the Sheriff-Substitute having been misled by the parties themselves into thinking that Gordon had voted, deducted the value of his vote (£55, Is. 3d.) from Yeaman's total, with the result that Little was in a majority of £33, 17s. 4d. Had this not been done Yeaman would have been in a majority of £21 or thereby.

Little objected to the competency of the appeal on the ground, inter alia, that review was excluded by section 71 of the Bankruptcy (Scotland) Act 1856.

Argued for the appellant—The appeal was competent. Even assuming that the Sheriff-Substitute was right in regard to the meaning of the Act 6 Geo. IV, c. 48, he had exceeded his jurisdiction in deducting £55, Is. 3d., the vote of George Gordon, Mr Gordon not having voted, or at all events his vote not having been recorded in the minutes of meeting of creditors. Where the Sheriff had exceeded his jurisdiction appeal was not excluded. His duty was to declare elected the person chosen by the majority of the vote of creditors. Here he had not done so. The following cases were referred to— Farquharson v. Sutherland, June 16, 1888, 15 R. 759, 25 S.L.R. 573; Rankine v. Douglas, July 19, 1871, 9 Macph. 1053, 8 S.L.R. 669; Wylie v.Kyd, May 21, 1884, 11 R. 820, 21 S.L.R. 693; Moncur v.Macdonald, January 8, 1887, 14 R. 305, 24 S.L.R. 225; ( Sampson v. Campbell, June 29, 1849, 11 D. 1208, was also referred to on another point).

The respondent was not called upon.