Cases which peculiarly regard the particular terms of the late Bankrupt Statutes, from 1772 downwards.
Hugh Finlay v. Bertram, Gardner, and Company
Date: 16 January 1788 Case No. No 275.
23d Geo. III. c. 18. - This act provides, that a party desirous to be conjoined in a poinding, must summon the poinder within a limited time. The appearing in an action, and producing an interest, found equivalent.
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Finlay having poinded the effects of his debtor, who became bankrupt, in terms of the statute of 1696; and another creditor, in virtue of the late bankrupt statute, having raised an action against the poinder, Bertram, Gardner, and Company appeared in that action, producing their interest, and craving to be conjoined.—To this it was objected by Finlay, That the permission of the statute to other creditors to claim their proportions of the goods poinded, is qualified by this express proviso, ‘that they make their claim by summoning the poinder;’ whereas, here was no summons, but merely an appearance in an action already instituted.
The Court were unanimously of opinion, that the judicial demand made by the production of the interest in question, was a stronger step, in bar of the limitation ‘of four months,’ than the mere summoning of the poinder, which, as the simplest mode, was allowed for the convenience of the creditors claiming; and it was observed, that the same interpretation had been given to the act of sederunt of 1662, by holding production of an interest as equivalent to citation, the expression which is employed in that act.
‘The Lords, therefore, repelled the objection.’
Reporter, Lord Dreghorn, Probationer.For Finlay, M'Cormick.Alt. Tait.Clerk, Home.
Fac. Col. No 15. p. 27.
