Scottish Court of Session Decisions

In the sequestration of the estates of James Cunningham & Sons, bleachers, Barrhead, a meeting of creditors was held at Paisley on 10th May 1887. Robert Reid and David Strathie, chartered accountants in Glasgow, were proposed as candidates for the office of trustee. A vote was taken, the result being that creditors to the amount of £931, 10s. 2d. voted for Reid, and creditors to the amount of £927, 13s. 5d. voted for Strathie, leaving a majority in favour of Reid of £3, 16s. 9d.

Thereafter Strathie lodged objections to a vote given under mandate by James Myles, the debt being for £96, 7s. 1d., and to a vote given under mandate by Messrs Gemmill & Company, the debt being for £116, 8s. 9d. Reid lodged objections personal to Strathie, and objections to the vote of Mr Anderson, in respect of a debt of £500, and also to the vote of Ross Robertson Auld, and others, the debt being for £321, 3s. 9d.

On 19th May 1887 the Sheriff-Substitute ( Cowan) pronounced this interlocutor—“Sustains the objection stated by David Strathie to the vote given under the mandate by Mr James Myles, the debt being a debt due to Mr Archibald Alexander Spiers of Elderslie, for whom Mr Myles states that he acts as factor, under a factory bearing date as duly set forth in his affidavit, but which mandate is not produced, the Sheriff-Substitute being of opinion, under the authority of Anderson (1847), 9 D. 1460, which is not impugned, but rather in his opinion confirmed by Aitken (1852), 14 D. 572, and also in accordance with the usual practice, that one who claims to depone for another whose the debt is must produce with his oath the evidence of the appointment under which he acts: Repels the objection stated against the vote given under the mandate by William N. Gemmill & Company, the third name inserted as mandatory being interlined in a different handwriting without being in any way authenticated, and these words being held therefore pro non scripto the mandate is intelligible, and was used by one of the parties named in it: Finds, therefore, deducting the above-mentioned vote, to which the objection has been sustained, that there voted for Mr Robert Reid, as trustee, creditors to the value of £835, 7s. 1d. sterling: Further, repels the personal objections stated to Mr David Strathie, the Sheriff-Substitute being of opinion that they are not proper personal objections, but rather objections to the votes of the creditors, whose nominee he is said to be, and being further of opinion, as decided in Colville (1850), 13 D. 415, that it is not a good objection to a trustee that he is the nominee of creditors whose votes may preponderate over those of others: Repels the objection stated to the vote of Mr Ross Robertson Auld and others, they having produced a lease granted by them in their capacity of trustees, under which, indeed, their claim arises, the debt being truly due to them qua trustees, and the vote in this respect differing from that under the mandate by Mr Myles above referred to, and the case of Aitken (1852), 14 D. 572, having ruled a somewhat similar point: Further, as regards the objection stated by Mr Reid to the vote of Mr Thomas Anderson, merchant, Glasgow, before answer allows Mr Robert Reid a proof of his averments, and to Mr David Strathie a conjunct probation.”

The effect of this interlocutor was, irrespective of Anderson's vote, regarding which a proof was allowed, to place Reid in a minority.

Reid appealed to the First Division of the Court of Session, and argued that the appeal was competent, and that the appeal brought under review the whole interlocutor. The Sheriff-Substitute had repelled certain of his objections which should have been sustained, and it was on these he desired to be heard. If these objections were sustained, there would be no need of a proof.

It was argued for the respondent that the interlocutor in so far as it allowed proof was incompetent— Rhind v. Mitchell, December 5, 1846, 9 D. 231; Tennant v. Crawford, January 12, 1878, 5 R. 433; Weldon v. Ferrier, November 15, 1879, 7 R. 235; Galt v. Macrae, June 9, 1880, 7 R. 888; Wylie, &c., v. Kyd, &c., May 21. 1884, 11 R. 820; June 21, 1884, 11 R. 968. That had it not been for this allowance of proof it would have been final; that this irregularity ought to be put right; and that the case should be remitted to the Sheriff to appoint the trustee in accordance with his own findings.

At advising—