William Paul, Accountant in Edinburgh v. Archibald Gibson, Accountant in Edinburgh [1834] UKHL 7_WS_462

UKHL
William Paul, Accountant in Edinburgh v. Archibald Gibson, Accountant in Edinburgh
[1834] UKHL 7_WS_462 · 1834-06-14
1. Held (affirming the judgment of the Court of Session) that in a competition for the office of trustee on a sequestrated estate, it is not a relevant objection to allege that a claim is suspicious, and that the claimant has an interest adverse to the other creditors, and may have the sole command of the estate and control of the trustee.2. A claimant, who was so situated as to be unable to make any other oath than that a sum was due to him, according to the best of his knowledge and belief, but without prejudice to augment or restrict the sum afterwards,— Held (affirming the judgment of the Court of Session) entitled to vote for a trustee.3. Where a party made affidavit to a precise sum as being due, and was so situated as not to require, hoc statu, to produce a voucher,—Held (affirming the judgment of the Court of Session) that his founding on a deed, in support of his claim, did not vitiate his vote, although the deed did not support the claim made, but was at variance with it.4. A party, in emitting an affidavit, having deponed that he could not write, and the oath being signed by the magistrate,—Held (affirming the judgment of the Court of Session) that there was no need of a signature by notaries for the party.

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Subject_ 5. Husband and Wife. —

A married woman, whose husband was abroad under sentence of transportation, having been found entitled to pursue an action of count and reckoning, with concurrence of a curator ad litem, and the defender's estates being sequestrated,—Held (affirming the judgment of the Court of Session) that she was entitled to vote in the election of a trustee, without her husband's concurrence.Thomas Anderson died in Jamaica on the 2d January 1810, unmarried, leaving two brothers, John and Alexander, and a sister Margaret, who was married to Alexander Bain. He had made a will, by which he nominated his brother John, who resided in Jamaica, and Alexander, who resided in Scotland, with another person, to be his executors. After certain provisions, the will concluded thus:
“The remainder I give and bequeath unto my dear and affectionate sister Margaret Bain, or brother Alexander Bain if he survives her, my dear and affectionate brother Mr. Alexander Anderson, or his present lawful wife if she survives him, each to draw a moiety of the yearly interest during their natural lives, for their accommodation and family; and after their deceases or decease, that brother Alexander and sister Margaret's children, with brother John Anderson's daughter Eliza Anderson, a free Mustee girl, have each a dividend of the interest, and may draw equal shares of the capital, as they become of age.”
John qualified as executor, and it was alleged that he intromitted with the property of Thomas to a large amount. John died on 28th December 1818, leaving a will, by which he appointed William Shand, and another person, his executors; but it was alleged that

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“I give and bequeath unto my dear sister Margaret, the wife of Alexander Bain of the county of Moray, in that part of the United Kingdom of Great Britain and Ireland called Scotland the sum of 1,000 l .sterling money of Great Britain, the same to be equally divided between herself and such of her children as may be living and residing in Scotland aforesaid at the time of my decease. Item, I give and bequeath unto my nephew William Bain, of the parish of Clarendon aforesaid, planter, son of the aforesaid Margaret and Alexander Bain, the sum of 500 l . current money of Jamaica. Item, I give and bequeath unto my reputed daughter Eliza Anderson, now residing in the city of Bristol, the sum of 1,000 l . sterling money aforesaid; but in case of her death and leaving lawful issue, then and in such case I direct the same shall be divided between them, if more than one, share and share alike; but if only one child, then to such only child. Item, I give and bequeath unto my other reputed daughter Ann Anderson, now residing with me, the sum of 1,000 l . sterling money aforesaid; but in case of her death, and leaving lawful issue, then and in such case I direct that the same shall be divided between them, if more than one, share and share alike; but if only one child, then to such only child; which said two last-mentioned legacies I do hereby direct shall be paid as soon after my decease as may be convenient to my executors.”
He then left some additional legacies, and concluded thus:the same and every part thereof unto my said brother Alexander Anderson senior, for and during the term of his natural life; but subject nevertheless, and my will and mind is, that my said brother Alexander Anderson do and shall, after payment and satisfaction of the debts and legacies here before mentioned, pay unto each of his children that may be then living, the sum of 200 l . sterling money of Great Britain; but in case of his death without payment of the said last-mentioned legacies, then and in such case I do hereby direct that the same shall be paid by such other person as shall become entitled to and be in possession of the residue of my estate; and from and immediately after the decease of my said brother Alexander Anderson, “I give, devise, and bequeath the same and every part thereof unto Alexander Anderson junior, son of the said Alexander Anderson senior, for and during the term of his natural life; and from and immediately after the determination of that estate, I give, devise, and bequeath the same unto the eldest son of the said Alexander Anderson junior, lawfully to be begotten; but in default of such issue then living, then and in such case I give and bequeath the same unto the next eldest son that may be living of the said Alexander Anderson senior, to him and his heirs for ever lawfully begotten; but in case no such son shall then be alive, then I give and bequeath the same unto my said two reputed daughters named Eliza Anderson and Ann Anderson, to them and the survivor of them, and to the heirs and assigns of such survivor for ever; but in default of such heirs, then to the heirs of my said sister Margaret, their heirs and assigns for ever.”
“And as to all the rest, residue, and remainder of my estate, real and personal, I give, devise, and bequeath

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It was alleged that Shand, as executor of John, intromitted to a large amount not only with John's proper estate, but also with that of Thomas, without rendering any account. Shand afterwards came to Scotland, and in 1829 Margaret Anderson or Bain (the sister), who had survived her husband, her daughter Elspet, wife of one Garrow, a convict under sentence of transportation, the widow of Alexander (the brother), and three of his children, as legatees and next of kin of Thomas and John, raised an action of count and reckoning before the Court of Session against Shand, as intromitter with the two estates. A curator ad litem was appointed by Elspet, and, on the dependence, inhibition and arrestment were executed. The estates of Shand were sequestrated in September 1833, whereupon Margaret and her daughter Elspet, and the widow of Alexander, and her three children, made affidavits, and lodged claims as creditors. The affidavit of Margaret was in these (and the others were, mutatis mutandis, in similar) terms:also her brother-german; who being solemnly sworn, examined, and interrogated, depones, that William Shand esq., of Arnhall in the county of Kincardine, merchant and trader, was, at the time and date of the sequestration awarded against him, and is still, justly indebted, resting, and owing to the deponent, as legatee and devisee, or residuary legatee, under the last will and testament of the said deceased Thos. Anderson, and as one of his representatives and nearest of kin as aforesaid, and as relict of the said deceased Alexander Bain, the sum of 14,498 l . 14 s . sterling, being her share of the aggregate sum of 43,496 l . 14 s . 2 d. sterling, arising from the intromissions of the said William Shand with the estates and effects of the said Thomas Anderson, lying in the island of Jamaica, conform to state subscribed by the deponent as relative hereto: As also depones, that the said William Shand is also justly indebted, resting, and owing to the deponent, as a legatee and devisee, or residuary legatee, under the last will and testament of the said deceased John Anderson, and as one of his representatives and nearest of kin, in manner foresaid, and as relict of the said deceased Alexander Bain, her husband, the sum of 2,848 l . 10 s . 10 d . sterling, being her share of the aggregate sum of 8,545 l . 2 s . 6 d . sterling, arising from the intromissions of the said William Shand with the estates and effects of the said deceased John Anderson lying in the said island of Jamaica, conform to state subscribed by the deponent as relative hereto, making together the sums claimed by the deponent in her own right, the sum of 17,347 l . 5 s . sterling, upon the premises assumed and founded on in the process of count and reckoning depending before the Court of Session, at the instance of the deponent and Elspet Bain, her daughter, against the said William Shand; nevertheless, without prejudice to the deponent to augment or restrict her claim hereafter as she may see proper for any cause: Farther depones, that neither the deponent nor any other person on her account and behoof, hold any other security for the foresaid sums than an action and process of count and reckoning, presently depending before the Court of Session, at the instance of the deponent and Elspet Bain, her daughter, against the said William Shand, and letters of inhibition and arrestment raised at their instance on the dependence of the said action, with the executions, inhibition, and arrestment following thereon; and that no part of the said sums has been paid or compensated in any manner of way. All which is truth, as the deponent shall answer to God: Farther depones, that she cannot write.
“At Forres, the 18th day of September 1833.—In presence of Alexander Urquhart esq., one of the bailies of the royal burgh of Forres,—
Compeared Margaret Anderson, relict of the deceased Alexander Bain, day-labourer at Altyre in the county of Moray, and who was one of the representatives, legatees, devisees, or residuary legatees, and nearest of kin to the deceased Thomas Anderson, late of the parish of St. John's, county of Middlesex, and island of Jamaica, her brother-german, and who was also one of the representatives, legatees, and devisees, or residuary legatees, and nearest of kin to the also deceased John Anderson, late of Clifford in the parish of Clarendon in the county and island aforesaid,

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Alex. Urquhart , B.”

The state referred to was entitled “State of the claims and interest, at the instance of the representatives, legatees, and nearest of kin of the deceased Thomas Anderson, late of the parish of St. John, county of Middlesex and island of Jamaica, and of the also deceased John Anderson, late of Clifford in the parish of Clarendon, and county and island aforesaid, against William Shand esq., of Arnhall in the county of Kincardine in Scotland, for the said William Shand's intromissions with the estates of the said Thomas and John Anderson.”

A specification in detail of the claim in respect of

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APPORTIONMENT.The estates of Thomas Anderson.The estates of John Anderson.£ s. d.£ s. d.

“1st Alexander Anderson's family -

43,496 2 68,548 11 5 ½

Whereof one third to the relict

14,498 12 22,848 2 10

For the children two thirds -

28,997 8 45,700 8 7 ½2d. Alexander Bain's family - -43,496 2 68,548 11 5 ½

Whereof one third to the relict

14,498 14 22,848 2 10

For the children two thirds -

28,997 8 45,700 8 7 ½Forres, 18th September 1833. This is the state referred to in our respective affidavits against the sequestrated estate of William Shand esq., of Arnhall, emitted this day.It was signed by notaries for Margaret, and by the other parties themselves. The total claims by them amounted to above 104,000 l .A competition having taken place for the office of trustee between the appellant Paul and the respondent Gibson, Margaret Anderson and others voted for the respondent, while creditors, to the amount of about 2,900 l ., voted for the appellant. Both presented petitions for confirmation, and mutual objections were ordered to be stated. The respondent made no objections to the votes for the appellant, but the latter objected to all the votes for the respondent.These objections rested partly on general grounds, and partly on particulars. The general objections were,—1, that the claims were fictitious, were contradicted by the wills and evidence produced, and were of a random and extravagant character; 2, that they had been got up by near relatives having a hostile interest to the other onerous creditors, and in order to enable them to have an entire control over and guidance of the trustee.

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The particular objections were,—1st, that the affidavits were merely of credulity, and not of verity, as required by the statute, seeing that they did not bear that any debt was truly due, but only “upon the premises assumed and founded on in the count and reckoning,” and they were not definite, because the affidavits were made “without prejudice to augment or restrict the claim hereafter;” 2d, that the claims were not consistent with the wills, and were made up on principles at variance with the provisions; 3d, that Margaret's affidavit was not subscribed by herself or by notaries; and, 4th, that although Elspet's husband was a convict, yet his goods had not been escheat, and the claim made by her belonged to him; that she had therefore no title to claim, and the concurrence of the curator was of no avail in the sequestration.The respondent answered,— 1st, that the oath expressly showed that a debt was due, and reference was merely made to the action of count and reckoning, to point out the grounds on which the claimants held the debt to be due; that in hoc statu they must be assumed to be true, and it was quite competent, in the peculiar circumstances of the case, to reserve a power to augment or restrict the claims; 2d, that even if there was any inconsistency between the claims and the documents referred to this was at present of no relevancy; but there was no inconsistency, as the claimants claimed both as legatees and next of kin of Thomas and John; 3d, that the signature of the magistrate to the affidavit was

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Lord Moncreiff reported the case to the Court, with this note:and he will only farther observe, that however just and expedient it may be that the Court should not in general be required to go into the question as to the actual verity of the debts, where the affidavits and vouchers are clear, positive, and consistent, yet, where on the face of those documents the claims are so manifestly uncertain, and made of any given amount at mere random conjecture, as he thinks they are in the present case, it is a question of very serious importance whether the whole command of the business of such a sequestration may be assumed by parties resting upon such hypothetical, uncertain, and conditional claims. It may be of little consequence here which of the two competitors for the office of trustee shall be preferred, both being known to the Court to be equally respectable; but there are cases in which the principle might lead to serious evils, even in that point.
“There is an evident necessity for reporting this competition. It would require a very minute and extended statement to exhaust all and each of the objections, and the points of fact and law involved in them. The Lord Ordinary will only, therefore, observe in general, that it appears to him that the objections are insuperable; and, in particular, that no good answer has been made to the three first objections. There is no doubt that the same accuracy and completeness in the evidence of the debt is not required in a question as to the right of voting, as in the ultimate question of ranking, and that objections which might be good in the latter case will not be good or relevant in the other. That distinction requires no enforcement; but it does not appear to the Lord Ordinary to settle the present case. The first question is, whether the affidavit is sufficient as a positive oath to a debt of defined amount, without condition or qualification; and the second is, whether, on the face of the affidavit, and the account or voucher necessarily produced in support of it, the one agrees with the other, so as to show the same specific debt as due to the individual claimant. It is entirely a different and separate question, by what evidence, apart from the affidavit and voucher produced, the claim may competently be shown to be unfounded or incorrect. In the present case the Lord Ordinary thinks that the claims fail in the two first points;

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The Lord Ordinary does not enter into the more particular objections; but many of them seem to require careful attention, if the general objections should not be thought to be made out.”The Court, on the 14th January 1834, repelled the objections stated to the election of the petitioner, Archibald Gibson, and confirmed his nomination as trustee. *Paul thereupon appealed, on the same grounds which he had maintained in the Court below.Lord Chancellor .—My Lords, in some respects I consider this question to be of no ordinary importance.

Footnote

* 12 S. & D. 431.

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Another and a very great distinction between the two systems has been adverted to from the bar; and I have thrown out an opinion, not a casual one, but a deliberate one, which I have long entertained, upon the structure of that branch of the Scotch bankrupt law. With us the creditors choose the assignee, who is to become, as the trustee is in Scotland, the administrator of the estate for the benefit of the whole. In Scotland the creditors also choose the assignee; but whereas with us the assignee once chosen can only be removed by application to the court, and upon cause

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My Lords,I will venture to say, without the least fear of contradiction, that speaking with all possible, with all due deference of an act of the legislature which stands unrepealed on the statute book; that is to say, speaking with all the respect of it which it is possible for a rational person to feel for such an act of the legislature, and with all the respect which is due to an act of that kind, meaning by that all due and all possible respect,—I will venture to say, within the limits of that respect, that there never was a provision of law less calculated to do justice amongst the parties, or to accomplish the object of the bankrupt laws,—the equitable and just and honest administration of the bankrupt's estate and effects,— than this to which I have now adverted. For, see the consequence: I am a creditor to the amount of a bare majority in value; for it does not require four fifths to choose; a bare majority creates a trustee, and a bare majority destroys him. There is an estate to the amount of 100,000 l . of debt. I have a claim of 51,000 l . as a

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“And be it enacted, that the interim factor, sheriff clerk, and the trustee and commissioners, or any of them, shall at all times be amenable to the Court of Session, by summary application to that Court, to account for their intromissions and management, and to answer for their conduct, at the instance of any party interested; and in case it shall appear to the Court that such application ought not to have been made, the party complained of shall be entitled to his costs, to be either retained out of the funds or recovered from the party complaining, as the Court shall direct, but otherwise the Court shall give such directions in regard to costs as they shall think fit.”
Now it is all proper until you come down to here; “and it shall be competent,” (this is technical enough still) “at any time for one fourth of the creditors in value to apply summarily to the Court of Session for having the said interim factor or trustee removed, upon cause shown; a majority of creditors in value, at any meeting to be advertised for the purpose, shall likewise be entitled to remove or to accept of the resignation of any trustee; and in either of these cases, or in the event of the acting trustee's death, the next trustee in succession shall be

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My Lords,it is not immaterial that I should call your Lordships attention, and that of the learned counsel the Lord Advocate, who is now at the bar, and does me the honour of attending to what I am stating on this subject, because I do hope that as the frame of the Scotch bankrupt law is now undergoing revision, with the intention of passing a new bankrupt act, in the hands of Professor Bell and others in Scotland,—I do hope that the Lord Advocate will do me the favour not to allow this new bankrupt act to pass through without very carefully attending to the structure of this branch of the 71st section, for the purpose of seeing whether there be any necessity in Scotland,—whether the nature of traders, creditors and debtors, and trustees in Scotland be so different from what it is every where else, as to make it reasonable, or even tolerable, that this provision should continue on the face of this statute.Well, my Lords, such being the provision of the bankrupt law, I must observe that a great portion of the argument, in the reply, seemed to me rather to be directed legislatively against the expediency and consistency of this provision of the statute, than judicially against the ground of the decision which was to be come to; because, although it is very true that the case of a single creditor, or one of two creditors, affords the strongest illustration of the absurdity of this provision of the Scotch bankrupt law, yet it must be

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My Lords,upon the best attention I can give to those affidavits, I am of opinion that as on the one hand it is perfectly clear, that if three or four words had been left out you would not have objected to them at all, so I conceive on the others all you have to attend to is, what the Court below had mainly to attend to, namely, to see whether the introduction of those words vitiates the whole so as to make these no longer affidavits within the twenty-third section. They are clear affidavits of debt, which the parties have taken on themselves to make, but they do refer to the ground on which they have sworn, whether it be of virtue or credulity. Can I be said the less to swear to a fact, if I refer to the reason I have for swearing it either in the one case or the other?My Lords,I have paid great attention to the arguments, and taken a full note. I have examined the opinions of the Learned Judges; I do not quite agree with the notion that Lord Balgray is the only judge who has gone into the case, for I think that the Lord President has gone rather fully into the case, though he

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Lord Chancellor .—My Lords, I stated when this case was last before the House, that I wished to have an opportunity to look further into it; that in all probability, for the reasons I then explained to your Lordships, I should feel it my duty, in the result, to move an affirmance of the judgment pronounced in the Court below. That if I should on further consideration come to a different conclusion, and should move your Lordships to reverse the judgment, I should at the same time that I did so state the reasons on which I proceeded; but that if my opinion remained unaltered after the statement I then made, a further detail of reasons would be unnecessary. It is necessary only, my Lords, that I should now state, that further reflection and consideration have confirmed me in the view I then took of the case, and that I feel no hesitation in moving your Lordships, that the judgment of the Court below be affirmed. Under the circumstances of the case, I say nothing about costs.The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed.Solicitors: Moncrieff and Webster— Alexander Duff, Solicitors.