Feb. 28, 1826. any personal funds, so that periodical states were unnecessary, and would merely have created expense to the creditors; that the bankrupt had been employed by their sanction to act as superintendant of the heritable property, and had received a recompense for his labour; and that the objections to the election of Lawrie as trustee were unfounded, and at all events were not competent, seeing that he had been duly confirmed, and had acted for upwards of three years; and there was no prayer for removal in respect of original disqualification. The Court found, that although there were certain irregula'rities committed by the trustee, yet these were not such as to 6 ' warrant his removal, therefore dismiss the complaint and decern: Find expenses due, subject to modification, and remit to 'the auditor to report on the account thereof when lodged.' And on advising a reclaiming petition and answers, they adhered.* In relation to the objections mainly founded on by Ewing, their Lordships held, that if any allowance had been made to the bankrupt without authority, the only consequence would be, that Lawrie would not be allowed credit for it in his account; that, under the peculiar circumstances of this case, the neglect to frame periodical states of the affairs, and to lodge a copy of the Sederunt-book, was not such an irregularity as to infer a forfeiture of office; and that the objection as to Lawrie being a confident of the bankrupt, was only competent prior to his confirmation as trustee. Ewing having appealed, the House of Lords ordered and adjudged that the interlocutors complained of be affirmed, with £100 costs. Lord Gifford.-My Lords, the appellants in this case appeal from certain interlocutors pronounced by the Second Division of the Court of Session. It appears that the respondent, Mr Lawrie, was appointed trustee on the sequestrated estate of Mr Hugh Gilchrist. The appellants, who were creditors of Gilchrist, presented to the Court of Session a petition and complaint, alleging that Mr Lawrie had contravened the provisions of the statute, and been guilty of misconduct, for which he ought to be removed from his situation of trustee. When this petition came on to be heard before the Court of Session, they pronounced this interlocutor :The Lords having advised this petition and complaint, with answers thereto, replies and duplies, find, that although there were certain irre'gularities committed by the trustee, yet these were not such as to war'rant his removal: Therefore dismiss the complaint, assoilzie the respon See 3 Shaw and Dunlop, No. 178. 'dent, and decern: Find expenses due, subject to modification, and remit Feb. 28, 1826. 'to the auditor to report on the account thereof when lodged.'-Against this interlocutor there was a reclaiming petition, and upon that petition coming on to be heard, they affirmed the interlocutor reclaimed against, and refused the prayer of the petition. From these judgments an appeal has been brought to your Lordships. My Lords, I must confess, considering the nature of this proceeding, that it appears to me that appeals of this nature do not deserve much encouragement; because, when a complaint of this sort is made against a person in the situation of trustee on a sequestrated estate, on whom an onerous duty is cast, it does appear to me, that charges brought against the trustee ought to be fully substantiated. In this case, it was conceded at your Lordships' bar, that many of those complaints which have been preferred against the trustee, were clearly of such a nature, that the Court could not do otherwise than consider that they ought not to have been preferred; and of others, that they were not substantiated. At the same time, it must be admitted, that, looking to this complaint, the Court of Session were of opinion, that, in some respects, the trustee had been guilty of irregularity. My Lords, by the Act of Parliament in question, it is enacted, that the interim factor, Sheriff Clerk, and the trustee, and commissioners, or any of them, shall at all times be amenable to the Court of Session, by summary application to that Court, to account for their intromissions and management, and to answer for their conduct, at the instance of any party interested; and in case it shall appear to the Court that such application ought not to have been made, the party complained of shall be entitled to his full costs, to be either retained out of the funds, or recovered from the party complaining, as the Court shall direct; but otherwise, the Court shall give such directions, in regard to costs, as they shall think fit. It then goes on to enact, that it shall be lawful for one-fourth of the creditors 'to apply summarily to the Court of Session, for having the said interim 'factor or trustee removed, upon cause shown.' My Lords, by this petition the individual creditors, the appellants, seek to have the trustee removed; and then, in the alternative, if the Court shall not think fit to remove, seek for a censure by the Court of Session, such as they shall conceive appropriate to the merits of the case. It is said, that though the Act of Parliament enacts, that it shall be competent for one-fourth of the creditors, yet that, nevertheless, it is competent to every individual creditor to apply. If that be the case, it appears to me that this part of the Act of Parliament is so far wholly useless. However, without further adverting to that part of the case, the simple question before your Lordships is, in the first place,-Is this interlocutor well founded, it finding that there were certain irregularities, but that they were not such as to warrant the trustee's removal? I apprehend no fault can attach to the interlocutor in that respect. It appears to me, that the major part of the complaint against the trustee was either irrelevant or not proved; that there were certain irregularities, is also clear. Then Feb. 28, 1826, comes this question, that part of the interlocutor being right,-Have the Court exercised a sound discretion with respect to the costs? My Lords, when I first read this interlocutor, without attending to those words, to which I first called your Lordships' attention, it struck me as a little singular, that, if the Court found the trustee guilty of any irregularity, they should give him the whole costs of the proceedings in Court; but that is not the effect of the interlocutor-it finds expenses due, 'subject to modi'fication,—that is to say, that they do not give the whole expense against the petitioner, but thinking, as they do, that a great part of this complaint ought never to have been made, as casting unfounded calumnies upon this respondent, they say, that as to that part of the complaint he ought to have his costs; and I must confess, I agree with the Court of Session in that view of the case. If the Court of Session had found the petitioner liable to all expenses of this proceeding, the judgment might have been charged with the inconsistency charged upon it, at your Lordships' bar; but it only finds the petitioner liable to expenses, subject to modificationthat is, it finds him liable, when the report of the auditor comes back, for the costs of that part of the proceeding, in which the Court think he has completely failed, and which ought, therefore, never to have been insisted in by him. My Lords, in this view of the case, I feel it my duty to move your Lordships, that these interlocutors be affirmed; and thinking as I do, though I would not prevent a fair creditor bringing forward a fair complaint against a trustee, and, on the contrary, holding that the door ought to be open to him, but thinking that many of the complaints in this petition are unfounded, it does appear to me that this appeal to your Lordships, which is not so much an appeal on the merits of the interlocutor, as against that part fixing the appellant with costs, is an appeal which ought not to be encouraged; and I shall therefore move your Lordships, that this interlocutor be affirmed, with costs. J. GREGGSON and J. RICHARDSON, Solicitors. No. 4. Feb. 28, 1826. 2D DIVISION. ALEXANDER EWING, Appellant.-Shadwell-Robertson. Bankrupt Discharge.-Judgment, affirming that of the Second Division, dischar- HUGH GILCHRIST, merchant in Glasgow, having become insolvent, his estate and effects were sequestrated on the 21st July 1820, under the statute 54 Geo. III. c. 137. Thereafter, having obtained the statutory concurrence, he presented a petition, on the 19th January 1822, to the Court of Session, Feb. 28, 1826. praying for his discharge. Alexander Ewing, a creditor, ob jected inter alia, that the sequestration had been resorted to by the bankrupt and the trustee as a mere pretext, to procure for the former a discharge of his debts; that the concurrence of many of the creditors was gained by illegal and unjustifiable means; that this concurrence was given before they had claimed or were ranked on the estate; and that the amount of his claim, which had not been computed, was sufficient to turn the balance, and exclude the application. Gilchrist, in answer, denied the truth or relevancy of these charges, and contended, that it was competent for the creditors to concur prior to being ranked; and that as one of the non-acceding creditors had now acceded, there was a majority in his favour. The Court, on the 24th May 1823, appointed the trustee to give in a new report, showing the proportion, both in number and value, on which 'the creditors, who have produced grounds of debt and oaths of ' verity at this date, concur in the application.' The trustee having reported, that, including the creditor who formerly did not accede, but who now did, there was a majority, the Court found 'the bankrupt entitled to be finally discharged of all his debts 'contracted prior to the application to sequestrate his estate.' And on the 8th July, having resumed consideration of the petition for discharge, and the petitioner's oath in terms of the statute, found him finally discharged of all his debts con'tracted before the 21st July 1820;' and decerned and declared accordingly. Ewing petitioned, and the petition being followed with answers, the Court unanimously adhered, and found the petitioner liable in the expenses of the answers.* Ewing appealed from these judgments, on the grounds on which he had relied in the Court of Session. The respondent, in addition to his former statement and argument, maintained that the appellant had allowed the judgment of the 8th July to become final, and could not be heard against the previous one; that even if the point were open, he had relinquished his old pleas, and betaken himself to new grounds equally untenable; and that appeals against discharges are to be viewed with great unwillingness and jealousy. The House of Lords ordered and adjudged that the appeal be dismissed, and the interlocutor complained of be affirmed, with £150 costs. See 2 Shaw and Dunlop's Cases, No. 716. Feb. 28, 1826. Lord Gifford.-My Lords, this case of Ewing v. Gilchrist arises. out of the last case of Ewing v. Lawrie. It is, I think, a case of great importance.-Mr Gilchrist, who had carried on business as a merchant in Glasgow, having become embarrassed in his circumstances, his estates and effects were sequestrated; Mr Lawrie was appointed trustee, and Mr Gilchrist obtained his discharge from a competent number of creditors having concurred; but Mr Ewing, the present appellant, chose to apply to the Court of Session to recall that discharge, alleging various complaints. The Court of Session, however, found Mr Gilchrist entitled to be finally discharged of all his debts, and found the petitioner liable in the expense of the answers to his petition. An appeal has now been brought to your Lordships' house against these judgments. My Lords, I apprehend such an appeal is certainly competent; but I fully concur in an observation made by the noble and learned Lord who usually presides in your Lordships' house, that an appeal of this description, although competent to your Lordships to entertain, is one that ought to be looked at with great caution by your Lordships. The bankrupt had obtained his discharge with the concurrence of a competent number -that discharge was complained of before the Court of Session, on the ground of misconduct on the part of the bankrupt-not only misconduct in his bankruptcy, but misconduct in obtaining improperly the concurrence of his creditors; and another charge was made, which I apprehend it to be incompetent for this gentleman to make, namely, as to the manner in which the sequestration had issued; because if it had improperly issued, there was a remedy in recalling that sequestration. He also complained of the manner in which the creditors had been permitted to rank on the estate, alleging that the bankrupt was not entitled to ask any creditor to sign his discharge, if that creditor had been improperly permitted to rank by the trustee; though, with respect to ranking, it was competent for any creditor to have brought that before the Court of Session. The Judges of the Court of Session minutely investigated the case, and were of opinion that there was no ground whatever to impeach the discharge of the bankrupt, and therefore refused to recall that discharge. Against that decision, an appeal was brought to your Lordships' house by Mr Ewing. My Lords, although I say an appeal be competent to your Lordships, yet, considering the situation of a bankrupt, who has thus obtained his discharge, and whose case has been thus investigated by the Court of Session, your Lordships would expect to have it most clearly. made out, that the Court of Session have decided wrong in allowing that discharge, before you would think of setting aside such a decision of the Court of Session. My Lords, after attending to the argument at your Lordships' bar, and the statement made in these papers, it does not appear to me that any case has been made out, to my satisfaction at least, and I should conceive not to your Lordships', to disturb the decision of the Court of Session al'lowing this bankrupt's discharge.' That being so, I apprehend your Lordships will feel no difficulty whatever in affirming the interlocutors complained of. If your Lordships do affirm the interlocutors upon such a |