Scottish Court of Session Decisions

In the sequestration of the estates of William Greig, merchant in Perth, a Competition arose for the office of trustee between John Lowe, general agent in Perth, and Thomas Fleming, merchant there. Each party presented a petition for confirmation, and a remit was made to the Sheriff of Perth to take a proof as to certain grounds of personal objection to the competitors, as well as to make the usual report on the objections to disputed votes. On a report of the proof being returned, the Lord Ordinary made great avizandum, and at the same time stated the points of discussion, and his opinion thereon, in this Note, which sufficiently explains their nature:

“This is a competition between Mr John Lowe and Mr Thomas Fleming for the office of trustee on the sequestrated estate of William Greig. Besides special objections to certain individual votes, each party states objections of a general and personal kind to the other.

“The Sheriff reports a balance of £118, 8s. 6d. in favour of Mr Lowe, subject, however, to the judgment of the Court on the objections, and particularly on the personal ones, on which he gives no opinion.

“ General and Personal Objections.

“I.—Fleming objects, that the meeting for election (10th June, 1834), was vitiated by the undue interference of the bankrupt or his brothers. This objection is stated in the record far more broadly than the proof warrants; but restricting it to what the evidence supports, I think it well founded. For,

“1st, Robert Marshall, a creditor, had resolved to vote for Fleming, and indeed had Written this. He attended the meeting in order to do so, and is entered as present and claiming. But the minute bears, that, ‘being obliged to leave the meeting, he left a mandate with the said John Ferguson,’ the preses, who, in virtue of this mandate, voted for Lowe. Now, the substance of Marshall's account of this is, that, prior to the meeting, Robert Greig, the bankrupt's brother, sounded him about selling his debt; that, at the meeting, Ferguson took him out of the room, and bought it; that Ferguson and Robert Greig suggested, and got from him, a mandate in favour of the former, in order that he might vote while the minute was writing out; with which mandate those two returned to the meeting, where Ferguson, as mandatory for the seller, voted for Lowe; that Ferguson said, that he had gone into this arrangement, ‘to serve poor William,’ i.e. the bankrupt; that Robert Greig stated, that ‘if Lowe's election was carried, the deponent would get the seven shillings per pound, as agreed upon, but that if Lowe's election was not carried, the deponent must just rank with the other creditors;’ and that, ‘it was an ugly job, because the deponent, by telling Fleming he had sold the debts, defeated the object for which they were purchased.’

“2dly, Edward Lennox, another creditor, swears, that on the day prior to the meeting, his vote for Lowe was solicited by the bankrupt and Mr David Malcolm. Malcolm states that he is the law-agent of Lowe in this competition, and that it was in this character that any thing he did took place; but he is also the bankrupt's brother-in-law. He further swears to great assistance being given to him by the bankrupt and his relations in making out his claim. Mr Fleming says that a fictitious claim was manufactured. This does not clearly appear. But he swears expressly, ‘that on the morning of the meeting the bankrupt and the deponent balanced, bringing out a balance in the deponent's favour of £218;’ and that on his complaining of the way in which he had been used, considering their former intercourse, ‘the bankrupt said that if he got his discharge, and should ever be able, the deponent would not be a loser.’

“A charge of improper influence is also rested on certain things which are said to have taken place at Crieff, where votes were procured, or attempted to be so, for Lowe, by the bankrupt and Malcolm. But as Malcolm was Lowe's agent, and the bankrupt is said to have been taken there merely to point out who his creditors were, it may not be safe to found much on these proceedings, though they certainly do not look well.

“But the other facts seem to me to imply an interference with the election on the part of the bankrupt and his relations which is illegal and dangerous, and quite sufficient to set aside the election of the person it was intended to favour. The brothers were no doubt creditors in their own right; but it was not in this character, or for the proper vindication of their own interest, as such, that they intermeddled.

“The facts also are disputed, but only by the evidence of these brothers. Now, though the objection to their admissibility was not insisted on, they are plainly incredible on this matter; and Lennox and Marshall are corroborated by the writings, and by the real evidence of each of their respective transactions.

“II.—Lowe objects to Fleming, that he is actuated in aiming at the office by views of personal hostility to the bankrupt.

“It seems to me that this charge is made out.

“David Allan, a creditor, first swears that after the election of interim factor, Fleming told him he meant to oppose the bankrupt's discharge; and then adds, that he (the witness) would have opposed Fleming's being trustee, because Fleming had stated to the deponent ‘that he did not care though he lost his whole claim, if he kept the bankrupt from his discharge.’ The same witness adds, that after the election of trustee, Fleming made a statement to him, and that ‘the deponent thought from what passed at said interview, that it was Mr Fleming's object to prevent the bankrupt from opening his shop.’ This is confirmed by James M‘Duff, who says, though whether before or after the meeting he cannot tell, ‘that Mr Fleming answered, that if he was to be trustee, William Greig would never open his shop;' and ‘it struck the deponent that he wished to keep him out of business, so as he might get the business.’

“I am not aware that there is any evidence adverse to this. If 1 had decided the case, I should probably have found that neither party was duly elected, and that Fleming was ineligible, and given expenses to neither.”.

His Lordship then gave his opinion on the objections to votes of creditors, but which it is unnecessary to notice.

Their Lordships considered that Lowe had so mixed himself up with the bankrupt in the various improper proceedings noticed by the Lord Ordinary, with a view to secure his election, that his election could not be sustained; and that Fleming was disqualified on account of personal hostility to the bankrupt.