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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Wilson [1885] ScotLR 22_808 (4 July 1885)
URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0808.html
Cite as: [1885] SLR 22_808, [1885] ScotLR 22_808
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SCOTTISH_SLR_Court_of_Session
Page: 808↓
Court of Session Inner House First Division.
v.
Facts:
Sequestration was awarded in the Court of Session upon a petition presented by the bankrupt with concurrence of one of his creditors. The bankrupt failed to comply with the provisions of section 48 of the Bankruptcy (scotland) Act 1856, in respect he did not insert the statutory notice of sequestration in the London Gazette until one day after the six days prescribed by that section. All the other provisions of section 48 were duly complied with. A meeting of creditors was held, a trustee was elected, caution was found, and the trustee's appointment was confirmed. The bankrupt thereafter presented a petition in which the Court were prayed to recal the whole proceedings at and following on the meeting. This petition was founded on the failure to record the statutory notice in the London Gazette in due time. Petition refused.
Andrew Ross Robertson, residing at 1 Marchmont Street, Edinburgh, with concurrence of a creditor of the amount required by the Bankruptcy Act, presented a petition for sequestration to the Lord
Page: 809↓
Ordinary on the Bills on 2d June 1885, and sequestration was awarded on that date. On 12th June 1885 a meeting of creditors was held, when Mr D. H. Wilson, S.S.C., was duly elected trustee. Wilson having lodged the necessary bond of caution, was duly confirmed trustee on 23d June 1885.
This was a petition presented by the bankrupt without the consent of any creditor, in which he asked the Court to “supersede and recal the whole proceedings at and following upon the said meeting of creditors … and to appoint a new meeting of the creditors … to elect a trustee or trustees in succession upon the sequestrated estates of the said Andrew Ross Robertson, and do the other acts provided by the said statutes.”
The petition was founded upon an averment that the statutory notice of the sequestration, and of the first meeting of creditors was not published in the London Gazette within the period fixed by section 48 of the Bankruptcy (Scotland) Act 1856. The notice appeared in the London Gazette seven days after the sequestration, whereas the period prescribed by sec. 48 is six days. All the other provisions of see. 48 were complied with.
Answers were lodged for Mr D. H. Wilson, the trustee. The petitioner appeared in person, and referred to the case of Garden and Others, July 18, 1848, 10 D. 1509.
Argued for the respondent—It was admitted that the notice had been inserted in the London Gazette one day too late. That, however, was owing to a failure on the part of the bankrupt which he was not entitled to found upon—2 Bell's Com. (7th ed.) 297, (5th ed. 285); Lang v. Glasgow Court-House Commissioners, May 26, 1871, 9 Macph. 768; Gray, February 2, 1844, 6 D. 569; Allan, June 6, 1861, 23 D. 972. There had been no prejudice to any of the creditors of the bankrupt. Section 71, which provided that the judgment of the Sheriff declaring the election of the trustee should be final, accounted for the absence of any cases directly bearing on the point.
At advising—
The first meeting of creditors was held on the 12th of June, and it is not disputed that the proceedings at that meeting were conducted in all respects in accordance with the provisions of the 67th section, and that it was held at the time prescribed by that section. The purpose of the present application is to set aside all that was done at that meeting, and all that has followed thereon—that is to say, the election of a trustee, the finding of caution, and the confirmation of the trustee's appointment.
The ground of the application is that there has been a failure to follow the provisions of section 48 with regard to the insertion of the statutory notice of sequestration in the London Gazette. The main provisions of section 48 in regard to the registration of the sequestration in the various registers have been here strictly complied with, but the last clause is in these terms—“the party applying for sequestration shall, within four days from the date of the deliverance awarding the sequestration (if awarded in the Court of Session), or if it is awarded by the Sheriff, within four days after a copy of the said deliverance could be received in course of post in Edinburgh, insert a notice, in the form of Schedule B hereunto annexed, in the Gazette, and also one notice in the same terms within six days from the said date in the London Gazette.”
It is admitted that the insertion of the notice in the London Gazette was one day beyond the six prescribed by the Act.
The petition now before us is presented by the bankrupt alone, without the concurrence of any of his creditors. Now, if an error of this kind were complained of by one of the creditors of the bankrupt, and if it were possible for him to show that he had in any way been prejudiced by the mistake, I should not be prepared to say that we could not entertain such a complaint. But I am very clear that we cannot entertain a petition by the bankrupt founding on his own neglect and omission.
The Court refused the petition.
Counsel for Petitioner—Party.
Counsel for Respondent— Lang. Agent— R. Broatch, L.A.