Subject_1 ADJUDICATION and APPRISING. Subject_2 RANKING of ADJUDGERS and APPRISERS.
Douglas, Heron, and Co v. Dunmore and Co
Date: 23 December 1784 Case No. No 49.
Act 23 Geo. III. cap. 18. How far the statutory proof of bankruptcy is requisite, to entitle a creditor to be conjoined in the first adjudication. What is meant by the “Creditors being in readiness to adjudge.”
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Dunmore and Company obtained a decreet of adjudication against a debtor of theirs, as charged to enter heir to his predecessor.
Afterwards Douglas, Heron, and Company, who had likewise used a special charge against the same person, though the induciœ were not as yet expired, preferred a representation to the Lord Ordinary in the process of adjudication, craving to be conjoined, in the terms of the late statute. To this procedure Dunmore and Company objected; and
Pleaded: It is only with regard to the estates of such persons as have been rendered bankrupts, that a first adjudication can be used in the manner prescribed by this act. This is apparent from the preamble of the statute, specifying, as its object, ‘the lessening of the expence of diligence on bankrupt-estates;’ and likewise from the care taken to ascertain and extend, by a particular clause, the qualifications of bankruptcy formerly known. An enlargement, indeed, of the reversion accruing to the debtor himself, attained a the hazard of his competing creditors, never could be intended. Nor could the benefit of this statute, at any rate, be assumed in this instance by Douglas, Heron, and Company, because, till the induciœ of their special charge be expired, they are not ‘in readiness to adjudge;’ a circumstance peculiarly required in all cases of this kind.
Answered: The chief purpose of this enactment was, to provide a speedy and equal distribution of the effects of merchants and traders who had become bankrupts; and hence the criterions of insolvency, as established by the statute 1696, were so increased, as to be more accurately accommodated to the situation of that class of men. The clause, however, by which this dispute must be determined, is quite general. It enacts, That “the Lord Ordinary, before whom any process of adjudication is called, shall make intimation, &c.” In order, too, as it should seem, more clearly to remove the present question, the appellation of bankrupt, used in all the other clauses of the statute, is here studiously amended into that of common debtor, its declared purpose being, “that any other creditors of the common debtor who may think proper to adjudge, and are in readiness for it, may produce the instruction of their debts, &c”. Such an interpretation, indeed, is essentially necessary; since, to require the statutory proof of bankruptcy, previously to a conjunction of the adjudications, far from lessening the expence of diligence, would greatly add to it. The other objection seems eqnally ill founded. Were this enactment confined to those who formerly could have demanded a decreet of adjudication, no creditor, unless he had not only executed a summons of adjudication, but had also called it before the Lord Ordinary, could derive any advantage from it.
The Lords over-ruled the first objection, but sustained the second. And
Found, “That the days of the special charge used by Douglas, Heron, and Company, not being yet expired, they were not entitled to be conjoined in the adjudication led by Dunmore and Company.”
Reporter, Rockville.For Dunmore and Company, Honyman.For Douglas, Heron, and Company, Blair.Clerk, Colquboun.
Fol. Dic. v. 3. p. 15. Fac. Col. No 188. p. 296.
