Scottish Court of Session Decisions

The Bankruptcy (Scotland) Act 1856, sec. 48, inter alia, enacts—“… the party applying for sequestration shall, within four days from the date of the deliverance awarding 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.”

Schedule (B) is as follows:—

“Notice to the Gazettes.

“The estates of AB (name and designation) were sequestrated on (date, month, and, year) by the (Court of Session or Sheriff of ).

The first deliverance is dated the (date).

The meeting to elect the trustee and commissioners is to be held at (hour) o'clock on the (day of the week) the (date, month, and year) within (specify particular place) in (town).…”

On May 9th, 1906, the Lord Ordinary officiating on the Bills pronounced the first deliverance in a petition at the instance of Alfred Alexander Murray, W.S., Edinburgh, for sequestration of the estates of Charles Oscar Northwood, residing at Rosslyn, Holmfield Road, Blackpool. As required by section 48 of the Bankruptcy (Scotland) Act 1856 an abbreviate was duly presented to the Keeper of the Register of Inhibitions at Edinburgh, and recorded. Notices in the form of Schedule B, were also inserted in the London Gazette of 8th June 1906, and in the Edinburgh Gazette of 5th June 1906, intimating the award of sequestration and the date of the first deliverance, and calling the meeting to elect the trustee and commissioners, and mentioning the last date for lodging claims. The meeting was duly held and a trustee and commissioner elected. The process was thereupon transmitted to the sheriff-clerk by the preses, with a view to the Sheriff confirming the election of the trustee in terms of section 70 of the Act. The Sheriff, however, had difficulty in confirming the trustee's election, or proceeding further with the sequestration owing to the date of the first deliverance having been erroneously stated by a clerical error in the notice in the Edinburgh Gazette as 5th June 1900 in place of 9th May 1906.

On 23rd June 1906 Murray presented a petition appealing to the nobile officium of the Court, in which he narrated these facts and made the following crave:—“May it therefore please your Lordships to authorise the petitioner to insert in the Edinburgh Gazette within four days from the date of your Lordship's deliverance, a notice in the following terms:—

‘ Charles Oscar Northwood's Sequestration.

Notice is hereby given by authority of the First Division of the Court of Session in Scotland that the estates of Charles Oscar Northwood … were sequestrated on 5th June 1906 by the Court of Session.

The first deliverance is dated the 9th May 1906.

The meeting to elect the trustee and commissioners is to be held at three o'clock on Wednesday the 13th day of June 1906 within Dowell's Rooms, 18 George Street, Edinburgh, A composition may be offered at this meeting, and to entitle creditors to the first dividend their oaths and grounds of debt must be lodged on or before the 5th October 1906.

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The sequestration has been remitted to the Sheriff of the Lothians and Peebles at Edinburgh.

All future advertisements relating to this sequestration will be published in the Edinburgh Gazette alone.

‘ Alfred A. Murray, W.S., Agent, 23 St James Square, Edinburgh.’

And to substitute said notice for that published in the Edinburgh Gazette on 5th June 1906, and to hold the same as equivalent thereto, and to authorise the Sheriff of the Lothians and Peebles, upon proof of such notice having been duly inserted, to confirm the election of the trustee and commissioner, and proceed in the sequestration as if the date of the first deliverance had been correctly notified in said Edinburgh Gazette; or to do further or otherwise in the premises as to your Lordships shall seem fit.”

Counsel for the petitioner in the Single Bills stated that the error was purely clerical; that the advertisement had been correctly inserted in the London Gazette; that the date of the first deliverance was not an essential fact (being inserted merely to give creditors notice of the proceedings), and had no effect in fixing the date of notour bankruptcy or in determining preferences. He referred to Lipman & Co.'s Trustee, June 14, 1893, 20 R. 818, 30 S.L.R. 729.