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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Thomas Baillie, Solicitor in the Supreme Courts of Scotland v. Davinia and Margaret McGibbon, Representatives of the deceased Mary McGibbon and Others [1848] UKHL 6_Bell_260 (10 April 1848) URL: http://www.bailii.org/uk/cases/UKHL/1848/6_Bell_260.html Cite as: [1848] UKHL 6_Bell_260 |
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Page: 260↓
(1848) 6 Bell 260
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1848.
No. 16
[
Subject_Bankrupt. — Jurisdiction. —
The Sheriff has power to award the professional expenses incurred during a contested election for the office of Trustee on a sequestrated estate, as well of the creditors as of the competitors for the office.
Subject_Reduction. — Jurisdiction. —
The act of a Sheriff in awarding expenses upon a higher scale than allowed by statute, is not an excess of jurisdiction to be corrected by reduction, but of judgment to be corrected by appeal.
By The 13th section of the 2 and 3 Victoriæ, cap. 41, it is enacted that the Lord Ordinary in the court of session, shall, upon a petition to that effect, award sequestration of the estates of a debtor, and appoint two successive meetings of the creditors, for the appointment of judicial factor and trustee, “and he shall likewise remit to the Sheriff of the county where the meeting is to be held, to proceed in manner hereinafter mentioned.”
By the 27th section, it is enacted, “That, notwithstanding the said remit to the Sheriff, the process of sequestration shall be held to be in the Bill Chamber of the Court of Session, and shall not fall asleep; and on the said remit being made, a copy of the petition for sequestration, and of the first deliverance, and also (where it is different) of the deliverance awarding sequestration, certified by one of the clerks of the Bill Chamber, shall, with the productions, be transmitted by the
Page: 261↓
By the 45th section, it is enacted, “That creditors, or their mandatories, qualified as aforesaid, shall assemble at the times and places fixed respectively for the election of interim factor, and for election of the trustee, with power to adjourn for such reasonable time as may seem fit, provided such adjournments do not postpone the meetings for the election of interim factor and trustee, beyond the limits of the periods within which these meetings are by this Act appointed to be held; and the Sheriff-clerk shall transmit, or cause to be transmitted, for exhibition to the meeting for the election of interim factor, the certified copy of the petition for sequestration and deliverances thereon; and if two or more creditors shall give notice to the Sheriff or Sheriff-substitute of the county, such Sheriff or Sheriff-substitute (or, in case of necessary absence, a Sheriff-substitute authorised by the Sheriff to act under the Act,) shall attend the meetings, and adjourned meetings, and preside; and the Sheriff-clerk or his depute shall also attend and mark the oaths and productions with his initials, and write the minutes in the presence of the meeting, and enter therein the names and designations of the creditors present, or the mandatories of creditors, and the amount for which they claim, and any other circumstances which the presiding Sheriff shall judge fit, which minutes the presiding Sheriff
Page: 262↓
The 46th section enacts, “That if the Sheriff or ordinary Sheriff-substitute be present at the election either of interim factor or trustee, and there be no competition for the office, or objections stated to the candidate or candidates, he shall, by a deliverance on the minutes, declare the person chosen by the creditors to be interim factor or trustee; and if there be competition or objections to the candidate or candidates, any objections shall be stated at the meeting to the votes or candidates, the Sheriff or ordinary Sheriff-substitute may either forthwith decide thereon, or make avizandum, and he shall, if necessary, make a short note of the objections, and of the answers, on which he shall, within four days after the meeting, hear parties vivâ voce, and declare the person to be interim factor, or (as the case may be) the person or persons, trustee or trustees in succession, whom he shall find to have been duly elected, and state the grounds of his decision in a note, and the same, as well as the said short note, shall form a part of the process.”
The 47th section enacts, “That where the officiating Sheriff present at said meeting for the election is a Sheriff-substitute appointed to act in the absence of the Sheriff, or of the ordinary
Page: 263↓
The 49th section enacts, “That, on the bond for the interim factor being lodged, the Sheriff shall confirm his election, which confirmation shall be final, and not subject to review in any court, or in any manner whatever; and the Sheriff-clerk shall issue an act and warrant, in the form of schedule (E) herunto annexed, to the interim factor; and in the event of the said deliverance declaring the election of trustee becoming final by no appeal being entered as hereinafter provided; and in case of any such appeal being entered, and the competition or objections being finally disposed of, and on a bond
Page: 264↓
The 54th section enacts, “That any creditor or competitor giving notice in writing to the Sheriff-clerk, within two days after the date of the Sheriff's deliverance declaring the election of the trustee, of his intention to appeal against such deliverance, shall be entitled to appeal during Session, to the Inner House of the Court of Session, or in vacation to the Lord Ordinary, provided that, in the case of a competition, a bond of caution for the competitor, signed by a cautioner approved of at the said meeting for election of trustee, shall, along with such notice, be lodged with the Sheriff-clerk, and a certificate thereof by the Sheriff-clerk, with a note of appeal against such deliverance, be lodged with and marked by the clerk of the Bill Chamber, within fourteen days from the date of such deliverance; and on a copy of such note, certified by one of the Bill Chamber clerks, being delivered to the Sheriff-clerk, he shall forthwith transmit to the Bill Chamber the minutes of election, together with such of the proceedings as may be required; and the Inner House or the Lord Ordinary (as the case may be) shall thereupon hear parties viva voce, and pronounce judgment, and may order a new election, and appoint a time and place for that purpose; and if the appealing competitor shall be preferred, a remit shall be made to the Sheriff to confirm him; and no part of the expense of such competition, either before the Sheriff Court or any other Court, shall be paid out of the estate, but the expenses shall be ordered to be paid by the unsuccessful party to the successful party.”
The 128th section enacts, “That it shall be competent to
Page: 265↓
And the 132nd section enacts, “That it shall be lawful for all agents, duly qualified to practise before the Court of Session, to practise in all Sheriff Courts, in so far as relates to any of the proceedings authorized by this Act to be carried on before the Sheriff, provided that they shall not be entitled to payment of any higher fees than those legally exigible in such Courts.”
On the 23rd of December, 1841, the Lord Ordinary on the petition of the Appellants, awarded sequestration of the estates of Neil McGibbon, deceased, appointed meetings of the creditors to be held for the appointment of interim factor and trustee, and remitted to the Sheriff, “to proceed in manner mentioned in the said statute.”
On the 31st January, 1842, a meeting of the creditors was held at Inverary for the purpose of electing a trustee. This meeting was attended by the Appellant, as a creditor on his own account, assisted by counsel. It was also attended by the clerk of Mr. H. Graham, a Writer to the Signet, from Edinburgh, acting as mandatory for several creditors, and by mandatories for other creditors. The meeting was presided over by the Sheriff of the county of Argyle.
A variety of mutual objections to the claims of each other to vote, were taken by the Appellant, and by the other persons present. The Appellant tendered his vote for Traill as trustee, and the other persons voted for Lindsay. The 31st of January
Page: 266↓
Traill, the disappointed candidate, and the present Appellant, appealed from the Sheriff's decision to the Court of Session; but they afterwards withdrew their appeal, in consequence of an unfavourable decision of that Court upon another appeal taken by them, in regard to the claims of some of the creditors who had voted against them, and paid the expenses of the Respondents in the Court of Session, which were awarded to them by that Court. To the appeal so withdrawn, Lindsay, the successful candidate, was the sole Respondent.
On the 26th March, 1842, the Sheriff, upon the motion of the Respondents, pronounced the following interlocutor, “Having heard the agent for Mrs. Mary McGibbon, and for the other creditors who supported the successful candidates for the offices of trustee and commissioners, and whose claims have been specially sustained by the Sheriff, on the motion made first for the expenses occasioned to them in the proceedings before the Sheriff by the opposition of Mr. Thomas Baillie and Duncan Bell, or his mandatory, and secondly, for the confirmation of Mr. Donald Lindsay as trustee in terms of the statute;—In respect of the bond of caution lodged with the Sheriff-clerk, and of the interlocutor of the Court of Session, dated 10th March current, the said Thomas Baillie and Duncan Bell, although notice was sent to their agents of the motion for expenses, having failed to appear before answer, makes avizandum with the cause.” And on the 29th of March, the
Page: 267↓
Under the first of these interlocutors the expenses to which the Appellant was found liable were taxed at 99 l. 0 s. 10 d., subsequently modified to 92 l. 4 s. 4 d, by interlocutor of 26th September, 1842. This taxation took place upon an account which embraced the proceedings at the meetings of 31st January, and 8 and 9 February, and was composed of charges made after the scale allowed to that branch of the profession which practises in the Court of Session, amounting in the whole to 83 l.; the rest of the account was made up of charges by a practitioner before the Sheriff Court, after the scale allowed in that Court.
On the 18th of October, 1842, the Sheriff allowed decree for the taxed expenses to be extracted within twenty-one days from the 14th October. On the 4th November the Appellant lodged an appeal against the interlocutor of 26th September, modifying the expenses. The Respondents objected that this appeal was too late, under the 128th section of the statute.
Page: 268↓
The Appellant acquiesced in the force of this objection and withdrew the appeal; but immediately presented a note of suspension, and brought an action for reducing the Sheriff's interlocutors of 29th March and 26th September.
In the action of reduction the Lord Ordinary, upon the 20th of March, 1845, repelled the reasons of reduction, and assoilzied the defenders from the conclusions of the action. And on the 15th November, 1845, the Court adhered to the Lord Ordinary's interlocutor.
Mr. Rolt and Mr. Crawford for Appellant.—I. The Sheriff had no jurisdiction to award expenses to the Respondents. During the proceedings at the meeting of creditors held on the 31st January and the 8th and 9th of February, nothing of a judicial nature occurred. The Sheriff presided over the meeting, and signed the minutes as “Preses,” because the statute gave a preference to him when present; but in doing so he exercised no judicial function any more than any private creditor who might have been appointed Preses in his absence could have done. The first judicial step taken by the Sheriff was his interlocutor making avizandum at the close of the meeting on the 9th. Up to this point the Appellant had not assumed the character of a litigant before the Sheriff; all he had done was to exercise the right which the statute gave him as creditor to vote for his own candidates and object to the admission of improper votes for other parties. Up to this time there was not only no litigation but no suit or judicial record; all that existed to show what had passed was the minutes of the creditors' meetings.
Unless, therefore, the statute expressly gave the Sheriff jurisdiction, he could have no power to award the expense which had been incurred by any of the parties prior to the 9th February, for nothing had occurred to justify the award as made in exercise of his ordinary jurisdiction. Such
Page: 269↓
So soon as the election is over the character of the Sheriff's interference changes. By the 46th, 47th, and 49th sections it then assumes a judicial nature, and so, in truth, do the proceedings of the creditors. But even after the Sheriff's functions have assumed a judicial character, there is no power given him by the statute to award costs. Neither in the direction to hear the parties vivâ voce upon their objections, and give his decision as to their election, nor in the direction to confirm the election, is there any authority given, express, or implied, to award costs. The interlocutor of the 29th March, 1842, therefore, which awarded costs was without any warrant from the statute, and so was the latter part of the other interlocutor of the same date, which, after confirming the election of Lindsay, kept the proceedings open in order to work out the finding for expenses. This was necessary for that purpose but was without authority, for, with the confirmation of the trustee, the jurisdiction of the Sheriff was at an end. No doubt the 27th section says the Sheriff shall have “as full power and jurisdiction as hitherto possessed by the Court of Session;” but that is qualified thus, “except where the power is otherwise specially conferred;” and the 13th section says, he is to proceed “in manner hereinafter mentioned.” The Sheriff is not, therefore, to have the general jurisdiction of the Court of Session. All that is meant is that, having delegated to him the jurisdiction of that Court, what he does in conformity with the statute, shall have the same force as if done by the Court of Session. Thus the confirmation of the trustee, if not appealed against, is to be as binding
Page: 270↓
II. Although the Sheriff should be held to have power to award expenses he cannot have any to award them against one set of creditors in favour of another. Till after the actual vote of the creditors appointing the trustee there is nothing judicial, either in the character of their proceedings, or in the Sheriff's duties. And neither justice, reason, nor propriety will suggest that a creditor, appearing to take part in an election, which is to be one of free will, should do so under the penalty of paying the expenses of his fellow creditors, who may outvote him, incurred merely in their attendance upon the meeting. And so far as regards the 54th section, as has been already shown, that has reference to the case of competitors for the office appealing
Page: 271↓
IV. But, assuming the Sheriff had power to award costs, and costs from one creditor to another, he had no power, when the agent was a practitioner before the Superior Courts, to award costs upon the scale of fees allowed in these Courts. The 132nd section of the statute is express, that agents qualified to practise before the Court of Session shall have power to practise before the Sheriff Court, but that they shall not be entitled to payment of “higher fees than those legally exigible in such Courts.” In the taxation of Graham's expenses, therefore, the charges should have been cut down to the scale of the Sheriff Court fees, and in awarding expenses upon a higher scale, the Sheriff proceeded ultra vires and in disregard of this enactment.
V. The objection to the interlocutor upon all these grounds is the proper subject of an action of reduction. Relief could not have been obtained by an appeal to the Court of Session under the 128th section of the statute, for, if that mode of remedy had been adopted, the right to relief could only have been supported by showing objections to the interlocutors upon their merits; whereas the objection is, in truth, that they were pronounced upon matter coram non judice, which applies equally to the allowance of expenses, upon an improper scale of charge, as to
Page: 272↓
Mr. Bethel and Mr. Anderson for the Respondents.
My Lords, the case turns entirely on the question, whether the matter, being brought before the Court of Session for reduction, that Court could dispose of it in that form or not; and it arises on a question of sequestration, which, under the Act of Parliament, was referred to the Sheriff; proceedings took place before the Sheriff, and a contest arising as to the office of trustee, some parties preferring one person, and other parties preferring another, some expenses were incurred, and the result was, that the Sheriff decided in favour of one of the parties, and the party disappointed who was not successful, might, under the express provisions of the Act, have applied to the Court of Session to raise again the question which the Sheriff had decided. He might have done so under the 28th section, which provides, “That it shall be competent to bring under review of the Inner House of the Court of Session, any deliverance of the Sheriff (except where the same is declared not to be subject to review), provided a note of appeal shall be lodged with and marked by one of the Bill Chamber Clerks within twenty-one days from the date of such deliverance (except in the case of appeals against a deliverance
Page: 273↓
This being a new subject matter for the jurisdiction of the Sheriff, it might be well supposed there were a great many proceedings under the Act of Parliament before the Sheriff, as to which there would be no rule to be found in the Sheriff's Court as to costs. The scale of fees there would be applicable to matters theretofore under the jurisdiction of the Court, but as new matter was introduced, it would be difficult to find a new scale of fees. The opinion I have formed, however, does not turn on that, I only mention it because the learned Judges below seem to have found great fault with the Sheriff for having
Page: 274↓
With regard to the first question, my Lords, that the Sheriff had no jurisdiction, it seems to me the clauses referred to, the 54th and 132nd, put it beyond the possibility of doubt, for it is first of all declared that the Sheriff should have the same power as the Court of Session had; and the Court of Session no doubt had the power and jurisdiction to give costs. If there is any doubt about that the 54th section provides for costs, not only before the Court of Session, but for costs before the Sheriff; then comes the very clause in question, which directs the scale and mode in which the costs are to be paid, a scale and mode for paying costs, which on the arguments used, the Sheriff had no right to look at. On these various clauses, I myself think that the first point cannot be maintained, namely, that the Sheriff had no jurisdiction over costs.
Then, my Lords, comes the question whether, if he had jurisdiction over costs, he had any jurisdiction over costs as between creditors. The 45th and 46th sections show that the competition may be raised by a creditor; it could only be raised by a creditor. Who is to elect? The creditors; one creditor proposes one individual, another creditor proposes another individual; they are all in competition; an individual has no right to come and say, “Appoint me;” he has no right to come before the Court and say, “My position here is that of a trustee;” it is the act of the creditors; the sections treat the competition as raised by the creditors; at the close of the section—in order, if there should be any doubt, to remove it—it drops the word “creditor,” and says, “the expenses shall be ordered to be paid by the unsuccessful party.” Here, my Lords, we have then a provision that creditors
Page: 275↓
Then, my Lords, with regard to the costs incurred before the Sheriff, that very provision referring to costs before the Sheriff, as well as before the Court, clearly shows that the costs to be given were costs, as well in the one case as the other. The competition arises from the first moment—the beginning—it arises when there is a difference of opinion between the creditors, one proposing one party, and the other another party.
The next question is one which has been the subject of much discussion, and according to the opinions of the Judges below, was the subject of most doubt, viz., whether there was such an erroneous proceeding on the part of the Sheriff as brought the case within the rule as to excess of power; and, supposing the rule to apply, whether a reduction could be maintained if it was a matter beyond his jurisdiction, notwithstanding the decision of the Sheriff is to be considered as final. I will assume that if it is beyond the jurisdiction, it is a proper subject for reduction; and then we will see what the act is. The Sheriff, I will assume, now has to deal with the costs; he is, by section 132, to adopt a particular scale, that is to say, he is to apply the scale existing in his Court to this new state of things; they say, “You have not done that; you have adopted a scale which is in use in the Court of Session, a higher scale,” therefore, giving the party a higher remuneration than he would have under the scale adopted in the Sheriff's Court; and therefore they say he is doing that which is not within his jurisdiction; his jurisdiction is to do right, and he is doing wrong; but that is not the sense in which the term is used. Is the subject-matter within
Page: 276↓
That, my Lords, disposes of all the grounds which have been the subject of this unfortunate appeal. My opinion is, that the majority of the Court of Session were right in the decision to which they came, and that the interlocutor appealed from must be affirmed with costs.
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Ordered and adjudged, That the petition and appeal be dismissed this House, and the interlocutors therein complained of be and the same are hereby affirmed, &c.
Solicitors: A. H. Smith— Spottiswoode, and Robertson, Agents.