nsnsm v. rosmox. - 45
a remedy by summary petition was substituted, and the lord chancellor
was authorized, when justice appeared to him to require it, to order
payment of interest for the time the dividend should have been with-
held. See 2 Christ. Bankr. Law, 477. This statute refers to divi-
dends ordered upon debts duly proved, and to a mode of managing
the estates of bankrupts which is now superseded. The assignecs
took the funds, and dealt with them as trustees; and it was one of
the abuses of the system that they would delay payment of dividends
after they had been declared by the commissioners, in order to make
interest for themselves. By the old law, they could be sued for the
several amounts, and, no doubt, were bound to pay interest for the
delay. But it was a delay in paying a debt due from themselves
after, it had been judicially ascertained. It is to this practice that
the statute is addressed, and it is under this statute, I have no doubt,
that the case cited by counsel was decided. Ex parte Loxley, 1 Glyn
& J. 345. See Ez parte Graham, 1 Rose, 456; Ex parte Atkinson, 3
Ves. & B. 13; Esc parte Alsopp, 1 Madd. 603. In this last case, the
reason for paying interest is given by the vice-chancellor that a debt
proved is like a judgment which the assignees cannot refuse to respect
excepting by a direct motion to expunge. If they fail to take the ap-
propriate action to review the proof, they cannot resist payment of
the dividend, and may be bound to pay interest. In this case the
debt was suspended and never admitted to proof until now, by order
of the court, upon the verdict rendered.
I can see no reason why, because a creditor finally prevails in a
claim honestly and fairly disputed by the assignees, he should have
more than his dividend. Not, surely, as damages for withholding
something due him, for there is nothing due him in bankruptcy until
his debt, both as to its legality and its amount, has been ascertained. ·
Not as matter of contract, for there is no contractual relation be-
tween the parties. I am conndent that the practice has always been
against it, and that it is both just and expedient that the general
creditors should be at liberty to investigate doubtful claims, without
theliability to such a penaltyvas would be imposed upon them by
granting this petition. I do not say that if funds have been set 'aside
to meet a large claim of this kind, and have earned interest, the court
has not power to order the precise amount of interest so earned on a
sum which proves to be the creditor’s money, to be paid to him. The
caseiof;Kitz~Lnger, abt supra-, rejects this ground of -relief, and gives the
creditor a larger rate than his money had actually earned. The rec-
ord in this case does not inform me whether such interest has been
received. If it has, the district judge must pass upon the case if the
petitioner sees fit to bring it before him. His former decision related
only to the time before the appeal, and in respect, at least, to the con-
siderable time which has since elapsed, I see no impropriety in ask-
ing him to hear the case again.
Petition denied. c