Scottish Court of Session Decisions

This was a special case. Alexander Pennycook, farmer at Pitcur, left the country in a state of insolvency in September, 1834. There was a considerable amount of stocking and effects on his farm. Several meetings of his creditors were called by advertisement, and held at Cupar Angus; a committee was appointed, and joint measures were resolved on, in consequence of which some of the creditors who had given Pennycook a charge of horning, refrained from proceeding with any separate diligence. Among other creditors, was the Western Bank of Scotland,both in respect of its agency at Blair-Gowrie, and its agency at Cupar Angus, where David Anderson, writer, was agent. Pennycook was rendered bankrupt by horning, caption, and execution of search, at the instance of the Blair-Gowrie agent of the Bank, on 14th October, 1834. Two bills of Pennycook, amounting to £500, which fell due in the end of December, 1834, were held by David Anderson, the Bank agent at Cupar-Angus, who, after four months had elapsed from the date of the bankruptcy, executed a poinding of the farm-stocking, &c., in name of the Western Bank, to recover payment of these two bills. A suspension of this diligence was brought at the instance of William Bett and other creditors, alleging that the Bank and Anderson had concurred with the other creditors in the propriety of adopting measures for the common behoof, and were barred from resorting to separate diligence. A proof was allowed, from which it appeared, inter alia, that immediately on Pennycook's leaving the country, a meeting of several of his creditors was held, at which Anderson attended. There were no written minutes made out, but it was proved by parole that a resolution to adopt general measures was agreed to by those present, including Anderson; and that a general meeting of creditors was directed to be called by advertisement. That meeting was held, and, pursuant to its resolutions, a subsequent general meeting was also held on 23d October, 1834, at which last meeting a resolution to adopt general measures, and prevent private preferences, was entered on the minutes. The name of Anderson was entered in the sederunt, as being present at the meeting, but he had been only present for a few minutes during its sitting, and his name was not inserted in the sederunt in the same manner as the names of those who had been present from the commencement. A parole proof was allowed as to the share he took in the proceedings during his presence at the meeting, as he alleged he had merely looked in, holding the door of the room in his hand, and had expressly intimated that he dissented from taking common measures. It appeared that he had never sat down in the room, but he failed to prove that he intimated any dissent; and one witness expressly swore that he had intimated he was willing to concur in joint measures. It also appeared that Anderson had recognised the committee, acting for the general creditors, and had made an agreement with them for compromising a claim for potatoes to the value of £400, which were pitted on the farm of Pennycook, and which Anderson alleged to have been sold by Pennycook to him whilst growing, and to have been taken up and pitted by him (Anderson) in circumstances which gave him right to demand delivery of them, notwithstanding Pennycook's insolvency. This referred to a separate transaction from the two bills already mentioned. The committee settled the dispute by giving up one-half of the potatoes to Anderson.

It appeared that Anderson had power to bind the Bank, if he had agreed to separate measures. An unsuccessful attempt was made by the Bank to show that Anderson, being a creditor of Pennycook, on his individual account, had acted solely in that capacity, and not as their agent, in reference to his dealings with Pennycook's creditors.

The Lord Ordinary found “that the chargers are barred from pursuing separate measures;” and therefore suspended and interdicted as craved, and found the chargers liable in expenses. ^*

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* “ Note.—The Lord Ordinary, thinking it would be expedient to have the evidence judged of by a jury, proposed the adoption of this course to the parties, both of whom, however, declined it, and the Lord Ordinary did not think himself called upon, after a proof had been led on commission, to compel them to begin again in a different shape.

“His view of the evidence is against the chargers. Mr Anderson was present at the meeting of 23d October, 1834. At this meeting a resolution against separate measures was taken. The chargers say in their answer to the suspenders' fourth reason of suspension, that on that occasion Mr Anderson pointedly expressed his dissent. But this is not recorded in the minute, it is not proved by the witnesses for the chargers, and it is contradicted by Mr Inches, the witness for the suspenders, besides being inconsistent with the facts of the case, particularly with the fact that the understanding that general measures were to be followed was practically acted upon. The Lord Ordinary considers the evidence as establishing an implied compact by the chargers, that they should not do separate diligence, but it is not necessary to carry it so far. It is not enough that they led the creditors to believe that they had concurred, and that they did this, at the least, seems clear. The attempt to distinguish Anderson from the Bank won‘t do. He may have had an interest of his own; but he also represented the Bank, whose agent he was, and never gave the creditors any intimation that he was acting only for himself.”

The chargers reclaimed.