Baillie v M'Gibbon
| Jurisdiction | Scotland |
| Judgment Date | 15 November 1845 |
| Date | 15 November 1845 |
| Docket Number | No. 4 |
| Court | Court of Session (Inner House - Second Division) |
Lord Wood. R.
Bankruptcy—Trustee—Stat. 2 and 3 Vict. c. 41, §§ 27, 54, 132—Expenses.—
ON 31st December 1841, the estates of Niel M'Gibbon, a deceased debtor, were sequestrated under the 2d and 3d Vict. c. 41, and a meeting for the election of a trustee was fixed to take place at Inverary on the 31st January 1842. It had been anticipated, previous to the meeting, that a contest would take place for the office of trustee, two sets of the creditors favouring the appointment of different candidates. At the meeting, Mr Thomas Baillie, S.S.C., who was a claimant upon the estate to a considerable amount, attended personally, accompanied by counsel, and also assisted by a practitioner in the sheriff-court of Argyle. The meeting was also attended by Mr A. P. Scotland, S.S.C., who was, or had lately been, a clerk to Mr Humphrey Graham, W.S., who appeared as the mandatory of Mrs Mary M'Gibbon, and certain other parties, claiming as creditors on the estate. Mr Scotland was assisted by a country agent. Mr Baillie, and Duncan Bell, a creditor, proposed as trustee Mr Anthony Traill, whom failing, another party. Mr Scotland proposed Mr Donald Lindsay, whom failing, Mr Alexander M'Arthur, whom failing, Mr James Renton, as trustees in succession. Commissioners were also proposed by both parties. Protests were taken by each of the two sets of creditors that their respective nominees had been duly elected, and objections were stated on both sides to the claims and votes of those supporting the opposite competitors. These proceedings occupied the day of the meeting, and also the 8th and part of the 9th of February, when the minutes were closed.
The Sheriff-substitute, who had presided throughout, at the request of certain of the claimants, made avizandum upon that day, and upon the following day (the 10th) heard parties upon the objections to the votes. He thereafter pronounced a deliverance (12th February,) finding that Mr Lindsay, and the other parties named along with him in succession, had been duly elected. The Sheriff had sustained the claims of a certain number only of the creditors who supported Mr Lindsay, and as their votes were decisive of the competition in his favour, he did not consider the validity of the claims of certain others who were also favourable to him. The principal claim so sustained by him was that of Mrs M'Gibbon, in respect of certain annuities which had been granted to her by the bankrupt. The Sheriff had (upon the 12th of January) pronounced a judgment, in an application at the instance of Mrs M'Gibbon, for having these annuities valued. This judgment Mr Baillie had brought under appeal to the Court of Session, and at the date of the Sheriff's judgment in the competition it was undisposed of. Mr Traill and Mr Baillie also appealed to the Court from the judgment in the competition. Before the second appeal was disposed of, a judgment was pronounced in the appeal with regard to the annuities, finding that Mrs M'Gibbon was entitled to vote according to the valuation which had been adopted by the Sheriff. The vote of Mrs M'Gibbon being decisive of the election against Mr Traill, he and Mr Baillie applied for leave to withdraw their appeal from the judgment in the competition, and the Court, by interlocutor of the 10th March, allowed it to be withdrawn accordingly.
Proceedings were then resumed in the Sheriff-court. Upon the 29th March, the Sheriff pronounced a judgment finding Mr Baillie and Duncan Bell liable to those creditors who had supported Mr Lindsay, whose votes had been sustained by the Sheriff, for the expenses incurred in the competition at and subsequent to the meeting for the election of a trustee and commissioners.
Of the same date Mr Lindsay was confirmed as trustee. The account of expenses having been remitted to the auditor for taxation, and, after having considered objections which were stated to it, the Sheriff, upon 26th September, pronounced a judgment, by which he modified the expenses found due to £92: 4: 4. This account, which was incurred to Mr Humphrey Graham, W.S., contained, inter alia, a charge for the time and travelling expenses of Mr Scotland in attending the meetings at Inverary. An objection had been taken to this part of the account, and the Sheriff, in sustaining the account, stated, in a note to his judgment of 26th September, that he had done so in conformity with what he held to be an established rule of taxation before the auditor of the Court of Session, and in conformity with the table of fees charged by Edinburgh practitioners. Mr Baillie thereafter lodged a note of appeal to the Court against the judgment of the Sheriff in the matter of expenses; but an objection having been taken to its competency, on the ground that the judgment of the 26th September had become final, Mr Baillie subsequently withdrew it.
Thereafter, Mr Baillie brought an action of reduction of the decrees of the Sheriff, of 26th March and 29th September 1842, and a concurrence thereon of the Court, of date 13th February 1843.
A great variety of reasons of reduction were stated in the summons, but the grounds upon which the action came ultimately to be supported, were, (1.) That the Sheriff had no power to pronounce the decrees of 26th March and 29th September, by which the pursuer had been found liable in expenses: That the expenses of a competition could only be ordered to be paid by the Court, in the event of the matter being brought before it by appeal: That, on the assumption that the Sheriff was entitled to deal with the matter of expenses, he could only competently award that part of the expenses which had been incurred subsequent to his making avizandum with the case, at which period only his judicial functions commenced, and the competition began: That he could not competently subject a creditor, or body of creditors, who had supported the unsuccessful candidate for the trusteeship in the expenses thereby incurred—the words ‘unsuccessful party,’ in the 54th section of the statute, referring not to the creditors, but to the unsuccessful candidate. (2.) It was further maintained that the Sheriff had exceeded his powers in the rate at which he had awarded expenses, he having (as he stated in the note to his judgment) sustained the account in question, as being in conformity with the Court of Session table of fees, whereas the statute declares (§ 132) that agents qualified to practise in the Court of Session, when practising in the Sheriff-court in the proceedings carried on there under the statute, ‘shall not be entitled to payment of any higher fees than those legally exigible in such Sheriff-courts.’1
The Lord Ordinary pronounced this interlocutor:—’Repels the reasons of reduction, and assoilzies the defenders from the conclusion of the action, and decerns: Finds the defenders entitled to expenses.’∗
Mr Baillie reclaimed.
(1.) Where the sheriff in a competition for the office of trustee on a sequestrated estate had found the creditors who had supported the unsuccessful candidate liable to those whose nominee had been successful, in the expenses incurred in the competition at and subsequent to the meeting for the election of the trustee,—Held, in a reduction of the decree of the sheriff at the instance of a creditor who had been found liable, that the sheriff had power to award these expenses. (2.) Certain items in the account of expenses, which were charged according to the table of fees of the Court of Session, having been sustained by the sheriff, although it is declared in § 132 of the Bankrupt Act, that no higher fees should be paid than those exigible in sheriff-courts,—Held that the creditor who had been found liable, not having exercised his right of appeal against this judgment, was not entitled to have it set aside on this ground by reduction.
1 References.—Section 27, section 54, sections 46 to 49 of Bankrupt Act.
∗‘NOTE.—The present case involves points of importance in regard to the construction and effect of some of the provisions of the existing Bankrupt Act. It was argued with great anxiety before the Lord Ordinary, and he thinks it right to state his views in reference to the various pleas maintained by the parties respectively, although he fears that from their number this cannot be done without going into some length of explanation.
‘The object of the action is to reduce certain deliverances or judgments of the Sheriff-substitute of Argyleshire, by which the expenses incurred in the election of a trustee upon the sequestrated estate of Mr M'Gibbon, a deceased debtor, were found due by the pursuer and Duncan Bell, creditors of the estate, to the defenders.
The sequestration having been awarded, under the 2d and 3d Victoria, c. 41, a remit was made to the sheriff in the usual way. It was known that the pursuer, Mr Baillie, and those who might unite with him, were to use their endeavour to obtain the nomination of an individual approved of by them, to be trustee, while this was to be opposed by another set of the creditors, who desired the nomination of another individual selected by them. From the nature and complication of the claims, it was anticipated that the contest or competition would occupy some time, that it would involve points of intricacy and difficulty, and that the conduct of it on either side would require both skill and experience. The statements in the record explain the coarse which the proceedings in consequence took. The pursuer Mr Baillie, and Mr Bell, (both creditors,) promoted throughout the appointment of Mr Traill to the trusteeship, and of certain other parties to be commissioners, Mr Traill's nomination was proposed by the pursuer, and seconded by Mr Bell. All the other creditors, and in particular the defenders, promoted that of Mr Lindsay and of certain other parties to be commissioners. The defenders' interests in the competition were taken charge...
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