Scottish Court of Session Decisions

The Bankruptcy (Scotland) Act 1913, sec. 44, inter alia enacts—“… The party applying for sequestration shall, within four days from the date of the deliverance awarding the 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:—

Notiee to the Gazettes.

The estates of A B (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 (day of the week), the (date, month, and year), within (specify particular place) in (town).

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

Mrs Margaret Morgan, Douglas Hotel, Stirling, presented a petition appealing to the nobile officium of the Court, which set forth—“That of this date (May 18,1922) the petitioner, with the concurrence of Alexander Stewart & Son of Dundee, creditors of the petitioner to the extent required by law, presented a petition to the Sheriff of Stirling, Dumbarton, and Clackmannan at Stirling for the sequestration of the petitioner's estates. That of the same date the Sheriff awarded sequestration in common form. That as required by section 44 of the Bankruptcy (Scotland) Act 1913 the petitioner duly presented to the Keeper of the Register of Inhibitions and Adjudications at Edinburgh an abbreviate of the petition and deliverance in the form prescribed, which was recorded of this date (May 20, 1922). That in terms of section 44 of the said Bankruptcy Act there should also have been inserted in the Edinburgh Gazette within four days, and in the London Gazette within six days after, a copy of the said deliverance could be received in course of post in Edinburgh, a notice in the form of Schedule B annexed to the said Bankruptcy Act. That of this date (May 23, 1922) a notice was timeously inserted in the Edinburgh and London Gazettes, but per incuriam the notice did not conform to the terms of said Schedule B, the sentence ‘All future advertisements relating to this sequestration will be published in the Edinburgh Gazette alone’ being omitted therefrom. That in terms of the said first deliverance, and as advertised in the said Gazette notices, the meeting of creditors for the purpose of electing a trustee and commissioners was held of this date (June 2, 1922). That the said meeting unanimously elected three commissioners and by a majority elected a trustee, to whose appointment objections have been lodged. That the Sheriff has difficulty in proceeding to deal with the appointment of the trustee and the disposal of the said objections by reason of the said notices calling the meeting of creditors not having been in the form prescribed by Schedule B although the whole other formalities prescribed by the said Bankruptcy Act have been duly observed, and no further advertisements of any proceedings in the sequestration have been necessary.”

The prayer of the petition was as follows:—“May it therefore please your Lordships to authorise the petitioner to insert in the Edinburgh and London Gazettes, within six days from the date of your Lordship's interlocutor hereon, a notice in the following terms:—‘Sequestration of Mrs Margaret Morgan, widow, carrying on business at Douglas Hotel, Arcade, Stirling.—All future advertisements relating to this sequestration will be published in the Edinburgh Gazette alone. This intimation was omitted from the notice published in the Gazette on 23rd May 1922, and is now given by authority of the First Division of the Court of Session, in terms of interlocutor dated 21st June 1922.—

Page: 446↓

R. M. & J. M. Yellowlees, Solicitors, 64 Murray Place, Stirling, Agents; and to hold that thereafter intimation has been fully given in terms of the Bankruptcy (Scotland) Act 1913, and in particular section 44 and Schedule B thereof; and to authorise the Sheriff of Stirling, Dumbarton, and Clackmannan, upon proof of such notice having been duly inserted, to proceed in the sequestration as if the notice required by the said Bankruptcy Act, and in particular section 44 and Schedule B thereof, had been correctly given on the 23rd May 1922, or to do further or otherwise in the premises as to your Lordships shall seem proper.”

Counsel for the petitioner in the Single Bills moved the Court to grant the prayer of the petition. He referred to Murray, 1906, 8 F. 957, 43 S.L.R. 686.

The opinion of the Court (the Lord President, Lords Mackenzie, Skerrington, and Cullen) was delivered by