Scottish Court of Session Decisions

On January 18, 1924, the Car Mart, Limited, Euston Road, London, presented a petition for the rectification of a notice in the Edinburgh and London Gazettes in the sequestration of Henry Randolph Christie, Edinburgh.

The petition which appealed in terms to the nobile officium of the Court set forth, inter alia—“That of this date (January 8, 1924) the estates of Henry Randolph Christie, now or lately carrying on business at 37 York Place, Edinburgh, residing at the Anchorage, Port Seton, in the county of East Lothian, were sequestrated by the Lord Ordinary officiating on the bills in terms of the Bankruptcy (Scotland) Act 1913. The deliverance awarding sequestration ordered a meeting of creditors to elect a trustee and commissioners to be held in Dowell's Rooms, Edinburgh, on 16th January 1924. Under the circumstances after stated the said interlocutor dated 8th January 1924 was issued. Of this date (January 11, 1924) notices advertising the said meeting appeared in the Edinburgh and London Gazettes. Of this date (January 16, 1924) the meeting of creditors so ordered and advertised was held. Objection was stated by Mr Robert Archibald Craig, C.A., Edinburgh, presumably representing a creditor, to the competency of proceeding with the meeting in respect that the Gazette notices did not give timeous notice of the meeting by failing to comply with the terms of section 44 of the Bankruptcy Act 1913. It was resolved that the meeting should proceed.… The failure timeously to insert the Gazette notice occurred in the following circumstances:—The respondent did not enter appearance or lodge answers within the induciœ fixed in the first deliverance on the petition for sequestration. The commission granted in said deliverance for recovery of evidence of notour bankruptcy and jurisdiction was executed, and when the usual minute craving sequestration was lodged it was found that appearance had then been entered for the respondent by Mr John Robertson, solicitor, Edinburgh. The minute craving sequestration proposed a meeting of creditors to elect a trustee and commissioners on 8th January. The case was enrolled for hearing and appeared in the Bill Chamber Roll of the Junior Lord Ordinary (Lord Murray) of this date, January 8, 1924. On the morning of 8th January William Officer Gilchrist, Parliament House clerk to the petitioners' agents, approached the respondent's agent to ascertain whether there was to be any opposition to the motion. Mr Robertson replied that there would be no opposition and he agreed that decree of sequestration should then be taken. He undertook to delete his notice of appearance and thereby save trouble. The said arrangement was reported to the Bill Chamber clerk, and the date of the meeting of creditors suggested for 8th January, on the understanding that

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there was no appearance, was altered to 10th January in the belief that the interlocutor would be signed and issued on the 8th, enabling the Gazette notices which had already been prepared in anticipation to appear in the Gazette published on that date. On the motion of counsel instructed for the hearing the Lord Ordinary granted decree of sequestration on 8th January on the footing that the notice of appearance would be withdrawn before issue of the interlocutor. On attendance at the Bill Chamber it was found, contrary to the arrangements made, that the respondent's agent had not withdrawn the notice of appearance.… On 10th January Mr Robertson deleted the notice of appearance and the interlocutor, dated and signed 8th January, was then issued and the Gazette notices despatched for advertisement. The petitioners’ agents failed to notice that there was not sufficient time before the meeting to allow of the statutory advertisement. The notice calling said meeting of creditors failing to comply strictly with the statutory provision, the petitioners make the present application to your Lordships for an order holding the notice in the Edinburgh and London Gazettes of 11th January 1924 as equivalent to a notice in the said Gazettes at least six days prior to the said meeting, or otherwise to hold that sufficient intimation of the meeting was given, or alternatively for warrant to hold a new meeting of creditors on a date to be fixed by the Court.”

On 19th January 1924 counsel for petitioners moved the Court to grant the prayer of the petition, and cited the cases of Taylor, 2 F. 1139, 37 S.L.R. 872, and Naismith, 1910, 1 S.L.T. 305.