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By the 45th section of the act 2 and 3 Vict. c. 41, it is declared, that ‘it shall not be lawful to elect as interim factor or trustee, the bankrupt, or any person conjunct and confident with the bankrupt, or who holds an interest opposed to the general interest of the creditors, or whose residence is not within the jurisdiction of the Court of Session.’
Against this deliverance and note, Allan appealed to the Court, in terms of the foresaid statute. The cause was this day advised; when the Court, after hearing counsel, without determining the point under the statute, as to whether the opposing interest there referred to must be direct, or fiduciary merely, found, that there was no sufficient ground in this case for any personal exception, and therefore dismissed the appeal, finding expenses due.
For the Appellant, Cowan. J. S. Ducat, W. S. Agent. For the Respondent, Whigham. Wm. Spalding, S. S. C. Agent. F. Clerk.
The following are the more direct cases bearing on the question raised by the objector:
(1.) In Paterson's sequestration, (1812,) the claimant was trustee on the estate of the bankrupt's son, the concerns of which were intermixed with those of the father , and, in some respects, in opposition to them; nevertheless, the Court does not appear to have viewed the objection as being absolute in its nature, but, on a view of the whole specialties , they refused to confirm the election.
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