Scottish Court of Session Decisions

Opinion reserved as to the effect of fraud in making said objection competent.

This was an action brought by Matthew Brown, cabinetmaker in Edinburgh, to set aside the election of trustee, and other proceedings, in the sequestration of William Duncan, S.S.C. The ground of reduction was certain alleged irregularities in connection with the meeting at which the trustee was elected, and, in particular, the alleged fact that the minutes of the meeting in question were not, as required by the statute, written out and signed in presence of the meeting.

The defence was a denial of the allegations of the pursuer with reference to what passed at the meeting, and the mode in which the minutes were prepared; but, in addition, the defender pleaded— (1) That the pursuer was bound to have stated his objection before the Sheriff, and that, the Sheriff having confirmed the trustee without objection, the matter was now foreclosed. (2) That the pursuer, having been present at the meeting in question, having concurred in the trustee's election, and having alleged nothing beyond certain irregularities, by which he was in no way prejudiced, had no interest to insist in the present action.

The Lord Ordinary (Jerviswoode) sustained both of the foregoing pleas, and dismissed the action. His Lordship added the following note: —“ There is in the Lord Ordinary's opinion some difficulty here, as to whether the whole facts of the

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case are so fully before him as to warrant his present judgment. But after consideration of the terms of the Bankruptcy (Scotland) Act, 19 and 20 Vict., c. 79; and more particularly of the 71st and 75th sections of that Statute, as illustrated by the judgment of the Lord Ordinary, and of the Court in the case of Buchan and Others v. Bowes, June 13, 1863, the Lord Ordinary has come to the conclusion that, dealing with the statements on the record as they stand, the pursuer cannot succeed in the present action.

“ If this conclusion be well founded in relation to the statutory provisions, there is no apparent hardship in giving effect to it here, as no specific allegation is made on the part of the pursuer of actual loss or injury suffered, or anticipated by him in respect of the proceedings, which, at the risk of probable hardship to others, he seeks to set aside.”

The pursuer reclaimed, and pleaded, with reference to the alleged finality of the Sheriff's judgment, that under the statute the Sheriff had no power to intertain objections to the validity of the minute of meeting, but could only deal with objections which were disclosed in that minute and related to such matters as the votes of particular creditors or personal objections to the trustee.

Fraser and Scott for pursuer.

Clark and Shand in answer.

The Court adhered to the interlocutor of the Lord Ordinary, and adopted both his Lordship's grounds of judgment. With reference to the Sheriff's power to deal with objections like the present, Lord Neaves held that such power did not require to be expressly given. Whether it was expressly given or not, it was fairly within the contemplation of the statute. It would be a different matter if a creditor could allege that an irregular meeting had been held behind his back and fictitious minutes concocted, and the Sheriff's confirmation obtained, all before he had been aware of the proceedings. On such a case no opinion need be expressed. A reduction-improbation of the minute might in that case possibly be competent, but there was no suggestion of such a case here; and the pursuer was, in the circumstances of this case, fairly foreclosed by his failure to state his objections before the Sheriff.