M'Fadyean (Todd's Trustee) v. Campbell and Others

Subject_1 Bankruptcy Subject_2 Sequestration Subject_3 Motion for Removal of Trustee Subject_4 Notice of Meeting — Bankruptcy Act 1856 (19 and 20 Vict. c. 91), secs. 74, 98, and 99. Facts: Held that a meeting of creditors called by a commissioner on a bankrupt estate for the purpose of removing the trustee under section 74 of the Bankruptcy (Scotland) Act 1856, must be specially intimated to the trustee at least not later than the date of the advertisement calling the meeting.

Opinion that the special intimation to the trustee must precede the advertisement.

A trustee having obtained interim interdict against a commissioner—who had given notice of a motion for his removal—holding, or constituting, or taking part in the meeting, certain of the creditors held the meeting and passed a motion for removal of the trustee; other creditors, forming a majority in value, and the trustee, absented themselves, relying on the fact that the interim interdict had been granted. Held that they were justified in doing so, and that the resolution for the removal of the trustee must be recalled.

Mr M'Fadyean then appealed to the Lord Ordinary on the Bills against the resolution of the meeting, craving that it might be recalled.

The respondents pleaded—“(1) The appeal is incompetent. (3) The meeting having been duly called and held in terms of the statute, the appeal should be refused.”