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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Mitchell [1871] ScotLR 8_502 (17 May 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0502.html
Cite as: [1871] SLR 8_502, [1871] ScotLR 8_502

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SCOTTISH_SLR_Court_of_Session

Page: 502↓

Court of Session Inner House First Division

Wednesday, May 17. 1871.

8 SLR 502

Robertson

v.

Mitchell

Subject_1Bankruptcy
Subject_2Trustee
Subject_3Removal
Subject_4Petition.
Facts:

A petition for the removal of the trustee in a sequestration having been presented by the bankrupt, the Court, before answer, ordered the proceedings to be laid before the creditors. The creditors resolved that the trustee should continue in his office. The resolution having been reported to the Court, the petition was dismissed.

Headnote:

This was a petition and complaint at the instance of Mr Robertson of Dundonnachie against Mr R. Mitchell, the trustee on his sequestrated estate, praying for his removal from the office of trustee on the ground of certain alleged fraudulent proceedings. The Court, by interlocutor dated 17th March 1871, before answer, and reserving all objections to the competency of the petition, appointed the respondent, as trustee, to call a meeting of the creditors, to lay the proceedings before them, and to report to the Court any resolution that the creditors might adopt thereanent. A meeting of the creditors was accordingly called by notice and special circulars. The meeting was held on the 8th of April. A large number of creditors were present or represented by mandatories. The whole proceedings having been laid before the meeting, a resolution was proposed and carried, with one dissentient, that “the meeting is of opinion that they should not interfere, and that the trustee should continue in his office.”

The minutes of the meeting were now reported to the Court and parties heard thereon.

The Solicitor-General and Taylor Innes for the respondent.

Morrison, for the petitioner, was proceeding to address the Court, when Mr Robertson stated that he wished to plead his own case. He accordingly addressed the Court at considerable length.

At advising—

 Judgment:

Lord President—When the case was before us on a former occasion, looking to the nature of the allegations made in the complaint, it did not seem to be for the interest of parties that the complaint should be de plano dismissed. But the case now stands very differently. The creditors have almost unanimously expressed a very decided opinion on the matter. We must keep in mind that the whole policy of the bankruptcy laws is to make the creditors masters of the bankrupt estate, to the exclusion of the bankrupt. Among other points the election and dismissal of the trustee is left entirely in the hands of the creditors under the statute, whatever may happen at common law under very exceptional circumstances. In the present case it would not be prudent for us to interfere with the resolution to which the creditors have come. We cannot take any step of the kind asked without interfering in the most direct manner with their resolution. It is our duty to refuse this complaint.

The other Judges concurred.

The Court refused the petition and complaint, but found no expenses due.

Solicitors: Agent for Petitioner— R. H. Arthur, S.S.C.

Agents for Respondent— Lindsay & Paterson, W.S.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0502.html