Cases which peculiarly regard the particular terms of the late Bankrupt Statutes, from 1772 downwards.
Robert Gentle and Others, v. John Kirk and John Steedman
Date: 15 June 1798 Case No. No 280.
In ascertaining the four kalendar months after bankruptcy, within which the poinder of a bankrupt's effects must be cited, under the 33d Geo III. c. 74. § 6. the day of bankruptcy is excluded.
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John Kirk and John Steedman, creditors of Andrew Bennet who was insolvent, executed a poinding of his effects in August 1796.
On the 27th of that month, Andrew Bennet was incarcerated at the instance of another creditor, and thus rendered bankrupt in terms of the statute.
The 33d George III. c. 74. § 6. provides, under certain limitations, “That no poinding of the moveables belonging to such bankrupt, used within sixty days before the bankruptcy, or four kalendar, months thereafter, shall give a preference to such poinder; but that every other creditor of the bankrupt having liquidated grounds of debt, or decrees for payment, and summoning such poinder, before the laid four months are elapsed, shall be entitled to a proportional share of the price of the goods so poinded.”
Robert Gentle, and certain other creditors of Bennet, brought an action against Kirk and Steedman, founded on this clause of the statute, and concluding for a share of the poinded goods.
The defenders were cited in this action on the 27th December 1796; and their defence was, that they had not been summoned within four months from Bennet's bankruptcy, as required by the statute.
The Sheriff found, “That the application by the pursuers, claiming under the diligence used by the defenders, is not made within the time prescribed by law.”
The pursuers having brought this judgment under review by advocation, the Lord Ordinary found, “That the poinding creditors were summoned before the four months from the date of the poinding were elapsed, and are therefore en titled to a proportional share of the price of the poinded goods, in terms of the act of Parliament, and under the deductions therein specified.”
In a reclaiming petition, the defenders
Pleaded, The day of Bennet's incarceration is to be reckoned the first day of the first kalendar month. The day on which the transaction took place is always taken into account, whether time be computed by years; No 160. p. 1075. Waddel against Salmond, Stair, v. 2. p. 871. voce Dies Inceptus; Durie, p. 130. Drummond against Lord Cunninghamhead, voce Dies Inceptus: Or by days; Fount. v. 2. p. 238. Blair against Magistrates of Edinburgh, voce Dies Inceptus. It follows, that the four kalendar; months, within which the defenders should have been cited, expired at midnight on the 26th December, otherwise there would be five days bearing the same number in four kalendar months, which is impossible.
Observed on the Bench, This case is governed by the principle on which the judgment, in the case of Mercer against Ogilvie*, was decided in the House of Lords, 1st March 1796, (voce Death-Bed.) It was there laid down, that in a challenge of a settlement, as on death-bed, the day on which the deed was executed was to be held as an indivisible point of time, not forming one of the sixty days, but merely the terminus from which they were to be counted. In like manner, the 27th August is not in this case to be held as one of the days of the four months, and consequently they did not expire till the 27th December at midnight.
The Lords refused the petition without answers. See Dies Inceptus.
Lord Ordinary, Dunsinnan.For the petitioners, Wm. Erskine.Clerk, Menzies.
Fac. Col. No 84. p. 191.
*** See M'Master, Inglis, arid Co. against Campbell, 10th July 1788, Fac. Col, No 30. p. 49. (voce Jus Terth, & Voce Process.)—A redeemable right of land was set aside at the instance of the creditors of the feller, as importing a conveyance omnium bonorum. The purchaser afterwards fettled with the creditors, and continued to possess. Parties who, subsequent to the reduction, became creditors of the feller, were found not entitled to carry on a process of sale of the subject, as the property of their debtor.—The reduction benefited only those who were creditors at the time.
