Metcalfe v. Clark

Merrick, C. J. This suit is brought under the Act of 1853, to revive a judgment rendered in December, 1844. In September, 1845, the defendant made a voluntary surrender of his effects to his creditors, and placed the plaintiff on his hilan as a creditor for the amount of the judgment, but no citation was ever served upon the plaintiff, nor was he in any manner made a party to the proceedings. The present suit was commenced in December, 1854. The defence to the action is, that there has as yet been no tableau of distribution filed, and under the authority of the oases of Taylor v. Hollander, 4 N. S. 535, and Conery v. Heno et al., 9 An. 587, this case ought to be cumulated with the insolvent proceedings. The decree of the lower court revived the judgment of 1844, but condemned the plaintiff to pay the costs. The defendant appealed; the plaintiff acquiescing in the decree of the lower court. It has been held by this court, that where a creditor was not made a party to the insolvent proceedings in a resonable time, he was not bound by the tableau of distribution and might disregard the same, and proceed upon his original demand. 3 N. S. 262; 6 L. R. 578 ; 18 L. R. 462. Here the defendant, who was the syndic, having in the first instance neglected to cause the plaintiff to be made a party to the insolvent proceedings, and moreover having suffered nine years to elapse without filing a tableau of distribution in violation of the Act of 1837, is not in a condition to compel the plaintiff to become a party to his stale proceedings in surrender. Leges vigilantibus non dormientibw swbsermunt. Judgment affirmed.