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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hendrie v. Lindsay (C.& A. Christie's Trustee) [1879] ScotLR 16_730 (11 July 1879) URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0730.html Cite as: [1879] ScotLR 16_730, [1879] SLR 16_730 |
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Page: 730↓
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A trustee in bankruptcy applied with the concurrence of all the creditors except one for his discharge. The usual remit was to the Accountant of Court, who in his report left it for the consideration of the Lord Ordinary whether there should not be special intimation to the dissenting creditor of the application for discharge. The matter was not brought under the notice of the Court, and an interlocutor was pronounced granting discharge. On this coming to the knowledge of the creditor he presented a reclaiming note, but after the expiry of the reclaiming days, asking to be reponed. Held (following the case of Milne v. Maccallum, Jan. 22, 1878, 5 R. 546) that notice not having been given to the dissenting creditor of the application for discharge, he was entitled to be reponed, and case remitted to the Lord Ordinary to inquire into the merits.
The estates of C. & A. Christie, coal and iron masters, Gladsmuir, were sequestrated on April 5, 1871, and Mr T. S. Lindsay was appointed trustee in the sequestration. The realisation of the estates were then proceeded with, and a final division of the funds made.
The trustee, in terms of section 152 of the Bankruptcy (Scotland) Act 1856, then duly called a meeting of the creditors, with a view to an application for discharge. Prior to this meeting, however, Mr Hendrie, a creditor, ranked on the estate for the sum of £49, 17s. 8d., had presented a complaint to the Accountant in Bankruptcy, proceeding on the grounds that the trustee's commission, as fixed by the commissioners, and the law expenses, were excessive. To this complaint the trustee lodged answers, and the matter was discussed before the Accountant in Bankruptcy. This note of complaint, the answers thereto, and the deliverance of the Accountant in Bankruptcy thereon, were, along with the sederunt book, accounts, &c., laid before the above-mentioned meeting of creditors which was held on February 20, 1879.
The meeting resolved that there were no grounds for the complaint in question, and authorised the trustee to proceed with an application for discharge—Mr Hendrie for himself, and as mandatory for Mr M'Culloch, their claim amounting in cumulo to £80, 12s. 8d., dissenting.
The trustee accordingly presented the usual petition for discharge, and the Lord Ordinary on the Bills on 1st May 1879 remitted to the Accountant in Bankruptcy to report. On 4th June 1879 the Accountant made his report, which, inter alia, contained the following observation with reference to Hendrie's dissent:—“The Accountant begs to refer to his acknowledgment of the sederunt book, in which he points out the objection which has been taken by Mr James Hendrie, a creditor, to the trustee's management. It may be for the Lord Ordinary's consideration whether any special intimation of the trustee's application for discharge should be made to Mr Hendrie before answer.”
That observation was not brought under the notice of the Lord Ordinary ( Adam), and without any special intimation having been made to Mr Hendrie (who remained unaware that the trustee was obtaining his discharge) he on 11th June 1879 granted the prayer of the petition and discharged the trustee.
Mr Hendrie, when he was informed of what
Page: 731↓
had been done, presented a reclaiming note, but subsequently to the expiry of the reclaiming days, asking to be reponed against that interlocutor. Authority— Milne v. Maccallum, Jan. 22, 1878, 5 R. 546.
At advising—
The Court therefore recalled the interlocutor, and remitted to the Lord Ordinary to hear the reclaimer's objections to the trustee's discharge.
Counsel for Hendrie— Shaw. Agents—
Counsel for Trustee (Respondent)— Macfarlane. Agents— Boyd, Macdonald, & Co., S.S.C.