Scottish Court of Session Decisions

The estates of William Wilson were sequestrated by the Sheriff-Substitute of the county of Ayr at Kilmarnock on 5th October 1891, and in the deliverance awarding sequestration he appointed a meeting of the creditors to be held on the 12th day of October 1891 for the purpose of electing a trustee and commissioners.

In terms of sec. 67 of the Bankruptcy (Scotland) Act 1856 this meeting required to be held “on a specified day, being not earlier than six nor later than twelve days from the date of the Gazette notice of sequestration having been awarded.” Notice of the sequestration and of the place and date of the said meeting was inserted in the Edinburgh Gazette of Tuesday the 6th of October 1891, which was the first publication of the Gazette after the deliverance awarding sequestration and appointing the meeting was pronounced. The meeting of creditors was duly held on 12th October 1891, and a protest was made on behalf of certain creditors against the legality of the proceedings, in respect that timeous notice of the meeting had not been given in the Gazette in terms of the Bankruptcy Statute. The creditors, notwithstanding the protest, elected a trustee and commissioners on the sequestrated estates. When the minutes of the meeting were reported to the Sheriff-Substitute he declined to confirm the election of the trustee on the ground that statutory notice of the meeting had not been given. He held that six clear days must elapse between the date of the Gazette notice and the date fixed for the meeting, and that the meeting having been held on the sixth day after the date of the Gazette notice the statutory notice had not been duly given.

The bankrupt and a concurring creditor presented this petition to the First Division of the Court of Session praying their Lordships “to remit to the Sheriff of the county of Ayr to declare the said Andrew Stewart to have been duly elected trustee on the sequestrated estates of the said William Wilson, and thereafter on the said Andrew Stewart finding caution, to confirm his election as such trustee, or otherwise to appoint a meeting of the creditors of the said William Wilson to be held within the George Hotel, Kilmarnock, on such day as your Lordships shall appoint, to elect a trustee, or trustees in succession, and commissioners upon the sequestrated estates of the said William Wilson, and to do the other acts provided by the Bankruptcy Statutes, and to appoint intimation of the said meeting to be made in the Edinburgh Gazette, and to remit to the said Sheriff of the county of Ayr to proceed further in the matter in terms of the Bankruptcy Statutes.”

Argued for the petitioner—The words of

Page: 177↓

sec. 67 were ambiguous, but the intention of the statute that notice such as had been given here would be sufficient was shown by the language of the clause. If six clear days had been essential this would have been clearly required, and in the absence of any such words the opposite might be presumed—2 Bell's Comm. 197; Scott v. Rutherfwrd, December 7, 1839, 2 D. 206; Greig v. Anderson, February 23, 1883, 20 S.L.R. 241.

No answers were lodged and no appearance was made on behalf of other creditors.

At advising—