Edgar v. Kennedy And Hutton's Trustee [1905] ScotLR 42_324 (19 January 1905)

Edgar v. Kennedy And Hutton's Trustee [1905] ScotLR 42_324 (19 January 1905)

A creditor who dissents from a compromise approved by the trustee and commissioners but does not appeal under section 169 of the Bankruptcy Act 1856 is bound by the compromise, which is final and conclusive. Further, the bond of indemnity offered was not clearly sufficient to protect the trustee and the estate against all liability, justifying refusal to allow the creditor to intervene.

Citation
[1905] ScotLR 42_324
Parties
Minuter and Reclaimer (creditor): Peter Edgar; Pursuer and Respondent: Angus Kennedy; Trustee, Defender and Respondent: John Dall (Trustee of Robert Hodgson Hutton)
Jurisdiction
Scotland
Judgment Date
19 January 1905
Procedural Posture
Civil (bankruptcy/trustee Action) / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
reclaiming motion refused; interlocutor of Lord Ordinary adhered to
Legal Topics
Trustee Powers, Compromise of Actions, Creditor Rights, Indemnity, Appeals in Bankruptcy
Bankruptcy Trusts and Estates Trustee Powers Compromise of Actions Creditor Rights Indemnity Appeals in Bankruptcy

Case Brief

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Parties

Peter Edgar

Minuter and Reclaimer (creditor)

Angus Kennedy

Pursuer and Respondent

John Dall (Trustee of Robert Hodgson Hutton)

Trustee, Defender and Respondent

Procedural Posture

Civil (bankruptcy/trustee Action) / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a dissentient creditor may intervene to prosecute an action after the trustee and commissioners have approved a compromise and the creditor has not appealed under section 169 of the Bankruptcy (Scotland) Act 1856.
  2. 2 Whether the bond of indemnity offered by the creditor is sufficient to protect the trustee and the estate.

Ratio Decidendi

A creditor who dissents from a compromise approved by the trustee and commissioners but does not appeal under section 169 of the Bankruptcy Act 1856 is bound by the compromise, which is final and conclusive. Further, the bond of indemnity offered was not clearly sufficient to protect the trustee and the estate against all liability, justifying refusal to allow the creditor to intervene.

Court Disposition

reclaiming motion refused; interlocutor of Lord Ordinary adhered to

Orders

  • Refusal of Edgar's minute to intervene as defender.
  • Authority interponed to the joint-minute compromising the action.