In re De Peyster

5 Cow. 266

• Court: New York Supreme Court
• Decided: February 15, 1826
• Status: Published

Opinion

Curia.

The 19th section declares, that if any creditor neglects to give notice of, or deliver an account of his demand to the trustees until after distribution, pursuant to the 17th section, he shall not be entitled to any dividend; but if he shall comply before the second distribution, he shall have the sum he would have been entitled to on the first distribution, before any second dividend be made.

The trustees are required by the 17th section to give notice to all the creditors to come in and prove their debts, within a certain time, when the first dividend is to he made. Now, we have seen, that, by a subsequent section, if they neglect doing this before the first, they shall be received before the second dividend; but no provision of this kind is made in reference to the third. Taking these various enactments into view, we are satisfied, that creditors who neglect to prove their demands till after a second dividend, are precluded from all share of the debtor’s estate in the hands of the trustees. An opinion to this effect was expressed in Peck v. Randall, (1 John. Rep. 174;) though the question does not appear to have been presented by the case.

This ground, would in the particular case before us, preclude the claim of all who became creditors after the attachment issued. But we have no hesitation, on this head, in answering the question put to us by the trustees, on broader ground. We are of opinion that no person can be entitled to a dividend who was not a creditor at the time of the first publication of notice of the attachment, pursuant to the second section of the act.

Motion of the London creditors denied.