Scottish Court of Session Decisions

The Bankruptcy (Scotland) Act 1856 (19 and 20 Vict. cap. 79), sec. 48, enacts—“… the party applying for sequestration shall … if it is awarded by the Sheriff, within four days after a copy of 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.”

John Robertson, 63 York Place, Edinburgh, presented to the Court a petition which set forth—That on 18th December 1908 the first deliverance was pronounced in common form in a petition by the petitioner to the Sheriff of the Lothians and Peebles at Edinburgh for sequestration of the estates of George Flett, 4 Bright Terrace, Edinburgh.

That as required by section 48 of the Bankruptcy (Scotland) Act 1856, the petitioner duly presented to the Keeper of the Register of Inhibitions at Edinburgh an abbreviate in the form prescribed, which was recorded on 19th December 1908.

After further procedure in terms of said Bankruptcy Act, the Sheriff of the Lothians and Peebles at Edinburgh, on 11th January 1909, awarded sequestration of the estates of the said George Flett.

There should have been thereafter inserted, within four days from the date of said last—mentioned deliverance in the Edinburgh Gazette, and within six days from the said date in the London Gazette, a notice in the form of Schedule B annexed to the Bankruptcy (Scotland) Act 1856. Owing to a mistake on the part of a clerk, who failed to despatch said notices, these notices were not inserted. The date fixed by said deliverance for the meeting of creditors—viz., 22nd January 1909—has now passed, and it will be necessary to fix another date,

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“In these circumstances it is necessary to appeal to the nobile ojficium of the Court for authority to insert notices in the Gazettes, and to fix a date for the meeting of creditors to enable the sequestration to be proceeded with.”

The prayer of the petition was for authority “to insert in the Edinburgh and London Gazettes within four and six days respectively from the date of your Lordships' deliverance, a notice in the following terms:—‘The estates of George Flett, 4 Bright Terrace, Edinburgh, were sequestrated on the 11th day of January 1909 by the Sheriff of the Lothians and Peebles at Edinburgh. The first deliverance is dated the 18th day of December 1908. The meeting to elect a trustee and commissioners is to be held upon the 10th day of February, at eleven o'clock, within Dowell's Rooms, 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 18th April 1909. All future advertisements relating to this sequestration will be published in the Edinburgh Gazette alone. John Robertson, Solicitor, 63 York Place, Edinburgh’—And to authorise the Sheriff of the Lothians and Peebles, upon proof of such notices having been duly inserted, to confirm the election of the trustee and commissioners and proceed in the sequestration as if the statutory notices had been inserted and the meeting held upon their due dates; or to do further or otherwise in the premises as to your Lordships shall seem fit.”

Counsel for the petitioner, on 30th January, moved the Court to grant the prayer of the petition de plano, but called their attention to the case of Morrison, January 21, 1874, 1 R. 392.