Scottish Court of Session Decisions

On 7th June 1898 the estates of James M'Cosh were sequestrated in the Sheriff Court of Lanarkshire, and a meeting of creditors for the election of a trustee was appointed to be held in terms of the Bankruptcy Act 1856 (19 and 20 Vict. cap. 79).

In terms of the 48th section of the said Act (which provides for the insertion of a notice in the Edinburgh Gazette within four days, and in the London Gazette within six days of the deliverance awarding sequestration), the bankrupt transmitted a notice in the form of Schedule B annexed to the Act to the printers of the Edinburgh and London Gazettes.

Owing to a printer's error the bankrupt was designated James “M'Cash” in place of “M'Cosh” in the advertisement inserted in the Edinburgh Gazette of 10th June. The name of the subscribing agent was also misprinted in the advertisement in the London Gazette of the same date.

In these circumstances the bankrupt, with consent of certain creditors, presented an application to the Court to appoint of new advertisement in the Edinburgh and London Gazettes of 21st June, and to fix the 29th of June as the date for the meeting of creditors.

The Bankruptcy Act 1856 (19 and 20 Vict, cap. 79), sec. 67, requires that the meeting of creditors for the election of a trustee should be held “on a specified date, being not earlier than six nor more than twelve days from the date of the Gazette notice of sequestration having been awarded.”

Argued for the petitioner—This was an appeal to the nobile officium of the Court to rectify a fatal error in the procedure for which the printer of the Gazettes and not the petitioner was to blame. The provisions of section 48, which prescribed advertisement, were always strictly construed—Goudy on Bankruptcy, p. 158, and cases there cited—and if the mistake could not be put right, there must be a fresh “first deliverance” in the sequestration, which might have the effect of conferring preferences on creditors who enjoyed no preferences at present. The Court had granted similar applications— Von Rotberg, December 22, 1876, 4 R. 263; Watt, March 10, 1877, 4 R. 641; Myles, June 14, 1893, 20 R. 818. The expenses of this application should not be made a charge on the bankrupt's estates.