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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wylie v. Kyd [1884] ScotLR 21_549_1 (21 May 1884)
URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0549_1.html
Cite as: [1884] SLR 21_549_1, [1884] ScotLR 21_549_1
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SCOTTISH_SLR_Court_of_Session
Page: 549↓
Court of Session Inner House First Division.
[Sheriff of Forfarshire.
v.
Facts:
Held competent to appeal to the Court of Session an interlocutor of a Sheriff pronounced before the appointment of a trustee in a sequestration, by which proof was allowed to a competitor for the trusteeship of his objections to the votes of the creditors who supported his opponent. Tennent v. Crawford, Jan. 12, 1878, 5 R. 433, followed.
In a competition for the office of trustee on the sequestrated estate of John Ogilvy, farmer, George Kyd, competitor for the office of trustee, objected to the votes of all the creditors who supported the election of James Wylie, who had been also nominated for the office at the first general meeting of creditors on 25th April 1884. The ground of objection was that the several creditors were not put on oath by the justices of the peace before whom their affidavits bore to have been sworn.
The Sheriff-Substitute ( Brown Douglas) on 5th May 1884 pronounced this interlocutor:—“Allows to the competitor Kyd a proof of his objections—that the several deponents in the affidavits produced were not put on oath by the justices of the peace before whom it is said the oaths were taken; and to the competitor Wylie a conjunct probation.”
Wylie appealed to the Court of Session.
The Bankruptcy Act 1856, sec. 71, provides “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 juadgment shall be final, and in no case subject to review in any court or in any manner whatever.” The 170th section provides—“It shall be competent to bring under the review of the Inner House of the Court of Session … any deliverance of the Sheriff after sequestration has been awarded (except when the same is declared not to be subject to review) … and it shall be competent to the Inner House … to remit to the Sheriff with instructions.”
The respondent objected to the competency of the appeal on the ground that the interlocutor of a Sheriff determining the competition for a trusteeship was final, and it followed necessarily that an interlocutor determining the validity of the votes given for competitors must also be final. Obviously that would be so if the Sheriff determined on the validity of the votes and decided the competition in the same interlocutor.— Galt v. Macrae, June 9, 1880, 7 R. 888; and Lord Shand in Tennent v. Crawford, infra.
Authorities for appellants— Tennent v. Crawford, January 12, 1878, 5 R. 433, and cases cited there; Reid v. Drummond, November 15, 1879, 7 R. 235.
The Court repelled the objection to the competency of the appeal, and sent the case to the roll.
Counsel for the Appellants— M'Kechnie. Agent— P. S. Malloch, S.S.C.
Counsel for the Respondent— Watt. Agent — David Milne, S.S.C.