M'CALLUM & Ors v TASKER & Ors (Court of Session)

The respondents objected to the competency of the petition, on the ground that, though boxed upon the twenty-ninth day after the day of the election, it was not marked by the clerk until the thirty-second day, being two days beyond the period allowed by the bankrupt statute for complaining to the Court of Session of the resolutions of the creditors at their general meetings.

The Lord Ordinary ‘sustained the objection, and refused the petition as incompetent;’ and stated the grounds of his opinion in the following note:— ‘If the election of commissioners is to be considered as one of the resolutions of a general meeting of creditors, which, by the section 41 of the bankrupt act, are declared to be final, unless complained of by petition to the Court within thirty days, the Lord Ordinary conceives the petition here to be incompetent, in consequence of its not having been marked by the principal clerk until the thirty-second day after the election.

The statute thus prescribes the same course of proceeding in the case of a disputed election of commissioners as in that of the trustee; and since it is certain, that the limitation of thirty days for bringing the resolutions of the creditors before the Court, is not applicable to a question as to the trustee's election, so neither can it apply to a complaint against the election of commissioners.

This petitioners' construction of a similar provision in the late bankrupt act was adopted in the case of Brown v. Dawson and others, 25th November 1809.

The case of Brown v. Dawson does not apply. The statute expressly requires that the persons to be named commissioners shall be creditors of the bankrupt; and the objection in that case was, that the commissioners were not themselves creditors, but mandataries for absent creditors, and, therefore, as stated in the report, ‘the election was originally null.’ But the objection here is not on the ground of nullity, but of the inexpediency of the nomination.