ART. III. Of the Petition for Confirmation of the Trustee,

IT has been already noticed, that, in the same deliverance which awards the sequestration, a day is fixed by the Court for the election of a trustee that this deliverance must be regularly advertised in the Edinburgh and London Gazettes, otherwise the proceedings to be null and void; and farther, that, if the advertisement shall not have been duly published, a new application must be made to the Court to name another day of meeting.

When the meeting takes place, "the cre "ditors may choose two or more trustees to "act in succession, one failing another by death, "resignation, or removal. But only one trus"tee shall act at a time."

The circumstances disqualifying a person for the office of a trustee, are well explained by Mr. Bell in his Commentaries. The statutory disqualifications are these.-That" in no case "shall it be competent to the creditors to ap"point, as trustee, either the bankrupt him"self, or any person who, with respect to him, "is, by the law of Scotland, held to be conjunct "or confident, Neither shall it be competent

to the creditors to appoint, as a trustee, any

f 54 Geo. III, c. 137, § 23.

No. 914.

person whose place of residence shall be "without the jurisdiction of the Court of "Session." h

On being elected, "the trustee must peti"tion the Court to be confirmed in his office, "and to have the estate and effects adjudged "to him, with an order on the bankrupt to dispone."!

He must previously, however, have “found "security for his intromissions and faithful "management, to the extent required by the "majority of creditors in value at the foresaid meeting." *

"The Court will not confirm an election "without caution, although the creditors should "expressly despense with it; and, on the same

principle, it is probable, that where the ex"tent specified is manifestly illusory, the trus"tee would be required to find security for his "whole intromissions." "The bond of caution "must be, in all respects, a regular and formal "bond, on the proper stamp, and containing a "clause for summary execution. It is lodged "in the hands of the clerk, for the benefit of "the creditors, and should be recorded in the

h 54 Geo. III, c. 137, § 23.

Bell's Commentaries, No. 915.

k 54 Geo. III, c. 137, § 26.

"books of Session immediately after the trustee "is confirmed by the Court."1

In the petition for confirmation," all the "heritable property belonging to the bankrupt "should be particularly enumerated and describ❝ed. The petition must be accompanied with, "1. The minutes:-2. The bond of caution; "and, 3. Evidence of the due advertisement of "the meeting." "

m

"Where the election is contested, each can"didate puts in a petition; and, in the mean"while, the interim-factor must proceed with "the management." The course of procedure is the same as in the contested election of an interim-factor. "It is not necessary that the "opposite parties in a contested election should "protest that the election has fallen to their "candidate, in order to enable them to petition "the Court for a confirmation." P

Where the election of a trustee is to be opposed, it is not indispensable that any personal disqualification be stated to the creditors at the meeting. It is sufficient that it be afterwards stated to the Court. Farther, "A personal "objection to the trustee, arising after his e

1 Bell's Commentaries, ut supra, No. 915.

m Ibid. No. 916.

n Ibid. No. 917,

Ibid. No. 921.

P Ibid. No. 912, (8.)

"lection, forms a good ground for refusing to "confirm the election." But it will be observed, there is this disadvantage in not stating the objection to the meeting, supposing it afterwards to turn out well founded, that in the event of a contest," where the objection is "stated to the creditors, the election by the "minority is confirmed by the Court;" and "where the obligation is not stated at the meet

ing, the election is altogether void, and a new "one ordered." If, however, the creditors shall have elected a trustee or trustees in succession, which the statute authorizes them to do, this will save the necessity of a new election, even though the election of the trustee named first in order, or of the rival candidates for the office of first trustee, be afterwards declared void.

A trustee having once accepted his office, is not afterwards entitled to throw it up at pleasure. But,

(1.) The creditors assembled at a meeting to be advertised for that purpose, may, by a majority in value, accept of his resignation,

Bell's Commentaries, ut supra, No. 914, (8.) Wilson against Thomson, 14th December 1811, there referred to.

Ibid. No. 912, (7.) Note 2.

• Ibid. No. 912, (9.) and case of Paterson's sequestration, 15th January 1812; Fac. Coll. there referred to.

The manner in which the meeting may be called, and the period which must elapse after the advertisement, are the same as in the case afterwards to be explained, of the Trustee's Removal.

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though, even here, the resolution come to by the majority, may be brought under the review of the Court, at the instance of any one individual creditor. " And,

(2.) It shall be competent for the trustee himself, when he intends to resign his office, "to "apply by petition to the Court of Session,

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craving to be discharged of the trust." This petition" the Court shall appoint to be adver"tised in the Edinburgh Gazette; and, at the "end of fourteen days from the date of the ad"vertisement, if no valid objection is stated, " and if the Court is satisfied that the trustee "has complied with the regulations of the sta

tute, so far as they regard him, the prayer of "his petition may then be granted; but, if any

objection is stated, the Court shall proceed to "determine the same in a summary manner." This, however, is always under the express provision, “that before making any such application, the trustee shall make out a full "state of his accounts, and of the situation of "the sequestrated estate; and shall call a

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I meeting of the creditors, of which at least four weeks notice shall be given by advertise"ment inserted in the Edinburgh Gazette, and "also by letters, through the medium of the post"office, addressed to every creditor who shall "have produced their claims, and proved their "debts, intimating the purpose of the meeting;

u Bell's Commentaries, No. 936, (1.); also 54 Geo. III, c. 137, § 71.