Cases which peculiarly regard the particular terms of the late Bankrupt Statutes, from 1772 downwards.
Robert Montgomery, and Others, v. John Parker
Date: 18 January 1778 Case No. No 269.
12th Geo. III. c. 72. - Creditors who did not lodge their claim with the clerk, within nine kalendar months, were found to have forfeited their share of the first distribution.
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The personal estate of William Wilson, a bankrupt, was sequestrated upon the statute 12mo Geo. III. c. 72. After the effects had been converted into money, a scheme of division lodged in the process, and the Lord Ordinary had allowed all concerned to see, and give in objections; but before his Lordship had reported the scheme; an interest was given in for Montgomery and Wilson, creditors who had not formerly appeared. These creditors insisted, that they were entitled to draw their proportional share of the first dividend, in consequence of the interest then produced.
An objection was suggested to this claim by the factor, upon the 6th and 10th clauses of the statute, bearing, in substance, That such creditors as shall not produce their claims, with the vouchers thereof, and make oath on the verity of their debts, ‘within nine kalendar months after the date of the sequestration,’ shall not be entitled to any share in the first distribution of the debtor's estate among the creditors.
The nine kalendar months were expired before the claim or vouchers were lodged.
Answered for the creditors: That another rule is adopted in § 11th of the statute, by which it is enacted, “That such creditors only, who shall have produced their vouchers, and grounds of debt, and proved the verity thereof, before the day fixed for each distribution, as before mentioned, shall be entitled to a share in such distribution.” By this, it seems to be meant, that it is sufficient if the debts are proved, and vouchers produced, before the day fixed for the distribution.
The Court found, ‘In respect: that the claims of Montgomery, Wilson, and Smith, with the vouchers thereof, were not lodged with the clerk to the sequestration before the expiry of nine kalendar months from the date of the sequestration, that, therefore, they were not entitled to draw any share of the bankrupt's effects in the first distribution.’
For the Factor, Ad. Ogilvie.Alt. Rolland.
Fac. Col. No 5. p. 10.
