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A deliverance awarding sequestration fixed the day for the meeting of creditors to elect a trustee and commissioners. If was necessary, for the purpose of giving six days from the date of the Gazette notice of the sequestration as required by the Bankruptcy (Scotland) Act 1856, sec. 67, that such notice should appear in the Gazettes of the day following the award of sequestration. The petitioners, having failed to insert a notice in the Gazettes of the day, presented a petition craving the Court to fix a new day for the meeting. The Court granted the crave, but—following Stark v. Hogg, February 24, 1886, 23 S.L.R. 507—added to the interlocutor a declaration that the expenses of the application should not be charged against the estate.
The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. c. 79), section 67, provides:—“The Lord Ordinary or the Sheriff, by the deliverance which awards the sequestration, shall appoint a meeting of the creditors to be held at a specified hour 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, at a convenient place within the county of the Sheriff awarding sequestration, or to whom the sequestration is remitted, to elect a trustee or trustees in succession, and do the other acts hereinafter provided.”
On the 8th May 1905 the Lord Ordinary officiating on the bills sequestrated the estates of Alexander Ross Mackenzie, hotelkeeper, Drumcudden Inn, Resolis, in the county of Ross and Cromarty, on the application of Messrs John Somerville & Company, Limited, The North British Brewery, Duddingston, Edinburgh, and others. In his deliverance awarding sequestration he appointed a meeting of the creditors to be held on the 18th May 1905 for the purpose of electing a trustee and commissioners.
By inadvertence it was omitted to advertise the meeting in the Edinburgh Gazette and the London Gazette of Tuesday 9th May, and it would have been difficult, if not impossible, to have had a notice of the meeting inserted in the London Gazette of that date, which was the day after the award of sequestration. Advertisements in the Gazettes of Friday the 12th May on the other hand would not have given the six days' notice prior to the meeting required by the statute. The meeting therefore could not competently be called and held.
On the 13th May Messrs Somerville & Company, Limited, and others presented a petition to the Court in which they asked that another day should be appointed for holding the meeting, and that intimation of such meeting in terms of the statute should be ordered.
Counsel for the petitioners referred to the cases of M'Cosh, June 17, 1898, 25 R. 1019, 35 S.L.R. 742; and Wilson, December 1, 1891, 19 R. 219, 29 S.L.R. 176.
The Court granted the prayer of the petition, but intimated that, following the case of Stark v. Hogg, February 24, 1886, 23 S.L.R. 507, the expenses of the application would not be allowed, and pronounced this interlocutor:—
“The Lords having considered the petition, fix Saturday, the 27th day of May 1905, at 11˙30 o'clock forenoon, within the National Hotel, Dingwall, as the day, hour, and place for holding the meeting for election of a trustee on the estates of the deceased Alexander Ross Mackenzie mentioned in the petition, or separate trustees or trustees in succession and commissioners, in place of the meeting fixed for the 18th day of May 1905: Appoint intimation of the meeting now fixed to be made in the Edinburgh Gazette and the London Gazette of Friday 19th May 1905: Remit to the Sheriff of the county of Ross and Cromarty at Dingwall to proceed in terms of the Bankruptcy Statutes, and decern; and declare that the expenses of the present application
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and procedure connected therewith are not to be allowed against the estate.”
Counsel for the Petitioners— C. D. Murray. Agents— Purves & Barbour, S.S.C.