Scottish Court of Session Decisions

Lord Mure—The objections which we are here asked to deal with by a proof at large, have been taken at that stage in the sequestration proceedings when a competition has arisen for the office of trustee, being a stage at which the policy of the statute, as I read it, is to enforce expedition, and to prevent anything like delay; and yet the main objection which has been lodged by one of the competitors for the trusteeship relates to every vote—and they are twenty in all—which has been tendered in support of his opponent. The substance of that objection is, that he “believes and avers” that the different creditors were not put on oath by the Justices of the Peace before whom the oaths are said to have been respectively emitted. Now, this objection raises an issue of fact as to what took place before various Justices in six different parts of the country—in Dundee, in Forfar, in Coupar-Angus, in Kirriemuir, in Glasgow, and in Edinburgh—and what is asked for in support of it is a proof that in all these different localities, and on twenty different occasions, the oaths bearing to have been emitted were not properly taken, or that no oaths were taken at all. It appears to me that it is already matter of decision that at this stage in a sequestration, and in a competition between two parties for the office of trustee an objection of this kind cannot be allowed to go to proof. I do not rest my judgment solely on the case of Reid v. Drummond, but also and mainly on the earlier case of Rhind, Dec. 5, 1846, 9 D. 231, to which we were referred, and the rubric of which bears that “it is competent to grant a diligence for the recovery of documents which afford instant proof in regard to the validity or invalidity of votes in the election of a trustee on a sequestrated estate; but it is incompetent at that stage of the sequestration to grant a diligence to recover writs as for a proof at large”—that is, in other words, that a proof prout de jure was incompetent at that stage of the proceedings. That case was very deliberately decided by Judges of great eminence, and although Lord Jeffrey in his original opinion expressed himself to the effect that no diligence should be granted, even for recovery of specified documents, at that stage of the proceedings, his Lordship, after more mature consideration, and after hearing the opinions of his brethren, seems to have come to the conclusion expressed in the rubric, which I think correctly embodies the opinion of the Court upon the question, and I am not aware that since then there has been any decision to a contrary effect.

I am therefore for applying the rule there laid down to the present case. The point raised was not altogether new at the time of the case of Rhind, for I observe that reference was there made to 2 Bell's Com., p. 347 (5th edition), where the law on the subject is laid down thus—“When any objection fatal to the debt claimed can be instantly verified, the Court is bound to give effect to it, and to reject the vote of the claimant.” But he adds—“The effect of the decisions cited below is that the scrutiny into debts, considered as qualifications to vote, is not to be made the subject of parole proof. The admission, on the one hand, of such written evidence in refutation as may instantly be produced, and, on the other, the security of an oath guarded by all the pains of perjury, seem to have appeared to the Legislature sufficient precautions against danger in matters of this sort, while a protracted inquiry suspensive of functions most important to the common interest is carefully to be avoided. The line of distinction is happily drawn in a case which came twice before the Court. At first the objection was stated to the claim as a qualification to vote in the election of interim factor, and afterwards the same objection was repeated to the debt as a title to draw a dividend. The Court supported the claim on the first occasion, and admitted it to further proof on the second.”

Any objection, therefore, which necessarily involves a proof at large cannot be entertained at that stage of the proceedings where a trustee falls to be appointed, but may be dealt with at a later period in the sequestration, viz., when a dividend has to be made. I am therefore for recalling the Sheriff-Substitute's interlocutor.

Lord Shand—It is obvious, from the nature of the proceedings in a sequestration, that it is of the utmost consequence to the creditors that there should be the least possible delay in the appointment of a trustee, and it is out of the question to suggest that in order to determine who shall fill the office the Court should enter into such an inquiry as was here suggested. Under the former statute the proceedings at the early stage of the sequestration were of a summary nature, while under the existing statute it is enacted that the judgment of the Sheriff declaring “the person or persons elected to be 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 in any manner whatever.” Now, I think

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