Scottish Court of Session Decisions

The Lord Justice-Clerk referred to Martin, 1857, 20 D. 55.

Lord Justice-Clerk (Alness)—This is a petition by the White Cross Insurance Association and by the trustee on the sequestrated estates of Daniel Livingstone Maclachlan. It is presented to the nobile offidum of the Court in these circumstances—On 9th May 1923 the White Cross Association presented to the Sheriff of Lanarkshire a petition for the sequestration of the estates of Maclachlan, and on that date the Sheriff pronounced a first deliverance granting warrant to cite the bankrupt. As directed by section 44 of the Bankruptcy Act of 1913, an abbreviate of the petition and deliverance following upon it should have been transmitted within two days to the Keeper of the Registers of Inhibitions and Adjudications for recording. Per incuriam this was not done. On 25th May 1923, however, an abbreviate was presented to the Keeper and was recorded by him. Whether he had any right or duty to record the abbreviate thus tardily presented to him, or whether, when recorded, that abbreviate had any effect in law, I reserve my opinion, as the question was not fully argued before us. I am disposed, however, to think that the Keeper should not have registered the abbreviate and that its registration was in the circumstances ineffectual.

The prayer of the petition to this Court alternatively craves that the already recorded abbreviate should be ratified, approved, and affirmed by the Court, or that the petitioners should be authorised, within two days of the interlocutor to be pronounced by the Court on this petition, to transmit to the Keeper an abbreviate of the petition and the first deliverance thereon, and that the Keeper should be authorised now to receive and record the abbreviate. In either event the petitioners' counsel admits that the rights and preferences of creditors (if any) cannot be prejudiced by the delay, and that these rights and preferences should be safeguarded in the interlocutor to be pronounced. I humbly advise your Lordships to grant the latter alternative of the prayer of the petition. For that course the cases which Mr Stevenson referred to, beginning with the case of Munro ( 13 D. 1209) appear to me to afford the necessary authority. It is true that the circumstances are not precisely the same in this case as in the cases which Mr Stevenson cited, because in all of them, I think, there was a subsisting and unrecorded abbreviate of sequestration. On the other hand if it be the case, as seems likely, that the attempt to record the abbreviate in this case was abortive, then these cases are a direct authority for the course which I venture to suggest to your Lordships we should here adopt.

Lord Ormidale—I entirely concur. I doubt very much whether the remedy suggested in the first part of the prayer of the petition is competent. I agree with the observation made that the first abbreviate not having been timeously lodged may well have no effect whatever. According to the statute the abbreviate ought to have been lodged within 48 hours after the date of the first deliverance, and that was not done.

I venture to think that the practice in the office of the Keeper of the Register of Inhibitions, following it is said the opinion of Crown counsel, under which abbreviates however late in being presented are accepted and recorded is a practice not warranted by the statute and is a bad practice. Obviously the result of it may frequently be to mislead the party presenting the abbreviate and to lead him to think that he has presented his abbreviate in due time. I do not know whether that was the case here, but a very long time has elapsed since the 23rd of May before any steps have been taken by the parties to have the error corrected.

On the other point I agree with your Lordship that we are following the normal course and the consistent practice of the Court in adopting the alternative prayer of the petition.

Lord Anderson—I concur. This is an example of a general class of case in which the Court in the exercise of the nobile officium is in use to correct blunders or errors that have been made in carrying out the procedure of the Bankruptcy Acts. Cases in the books show that other errors have been rectified by the Court, e.g., making a mistake in the Gazette notice calling a meeting of creditors, or failing to insert a Gazette notice to that effect at all.

The particular error in this case is familiar, namely, a failure to record timeously the abbreviate of the petition for sequestration and the deliverance thereon. There is no doubt, on the authorities to which Mr Stevenson referred us, that that is an error which the Court is in use to rectify, and our duty is to rectify it. The only point is how that is to be done. The prayer of the petition is alternative that ( a) what has been done should be ratified by the Court and allowed to stand, or ( b) that we should instruct those responsible to proceed de novo by lodging a new abbreviate. I am of opinion that the latter is the proper course because an abbreviate which has not been timeously recorded is just in the same position as to its legal effect as an abbreviate which has never been presented for recording purposes at all.

I therefore agree with your Lordships in thinking that we should authorise a fresh

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