Stulzfoos' Appeal

The opinion of the court was delivered by Houston, J. J. Hamilton died indebted to sundry persons on judgments in his lifetime, to the appellants on specialties, but on which nothing was due at Hamilton’s death, but on which monies were due before the money brought into court, and are still due; and also on sundry simple contracts on which suit had been brought and judgments obtained at the time of the decree. On the 30th of June. 1827, the Common Pleas made a partial distribution of the money in court, directing certain judgments to be paid. They also decided that they would not notice the claim of the appellants, because nothing was due on it at the death of James Hamilton, but they did not distribute the whole fund. The appellants appealed, see 13 Serg. & Rawle, 299. The appeal was dismissed, because that court had made no final decree, and this court would not hear a discussion and give a decision on every interlocutory decree in such case. When the cause went back, that court, after stating that they had before directed payment to certainjudgment creditors,proceed to say we could not then, nor can we now recognise the claim of Stulzfoos, P. Eckart, and C. Royer, and then proceed to direct payment to [268] Catherine Henderson, and Nathaniel Watson’s executor with interest until the 31st of January, 1831, and state that “this is,done in consequence of the decision in Shultz’s Appeal, 11 Serg. & Rawle, 182, which decides that where the estate of a deceased person is not sufficient to pay specialties, and simple contract creditors, the creditors by specialty shall have interest up to the payment of their respective debts” and then proceeded to distribute the remain - ingm'oney joro rata among the creditors, by simple contract who had obtained judgments. The appellants have brought this matter again before this court. The case in 11 Serg. & Rawle, 182, is inapplicable to this case.There, the money was not raised on an execution, nor raised at all so far as we know, but the administrator having ascertained that there woul d not be sufficient assets to pay all the debts, had applied to the court to appoint auditors. But in this case the money was raised by a sale of lands of Hamilton, and brought into court for distribution. So far as that money would go in the discharge of the debts, they were paid by the levy of that money; and interest ceased on the 24th of June 1825. That part of the decree allowing to Catharine Henderson and Watson’s executors, interest after the 24th of June 1825, is reversed. It has been contended that because the judge decided against the appellants several years ago, and the appeal then taken, was dismissed, that there is no redress now. It is often right where there is money enough to pay one class of creditors, those by judgments, for example, to pay them, and not detain the money while other creditors who must come after them, are disputing; but if one creditor by judgment thinks himself then agrieved, he cannot appeal till the final decree, and must be heard in this court then, although the court rejected his claim a year before the final decree. The reason*first given by the court, to wit: that no money was due on the specialty, when Hamilton died, has not been even attempted to be supported here, and could not be. Frazer & Dunwoody’s administrator, 1 Binn. 254. It was also said that the appellants had not brought suit on their agreements, and bond, nor is this necessary. The order of payment is fixed at the death oifthe debtor. A bond creditor took the money from one who had obtained judgments on a simple contract and levied and sold the land. Bank v. Stambaugh’s administrators, 3 Serg. & Rawle, 299. Reed v. the Commonwealth, 11 Serg. and Rawle, 441. Where the claim is for unliquidated damages on articles of agreement a verdict and judgment may be necessa ry to ascertain the sums, but where the agreement, or bond is to pay a certain sum on a particular event, and that event has happened, it is as much a matter of calculation, as if to be paid ata certain time, and [269] that time has arrived. The facts as proved are, that the appellant having doubts about the title of Catherine, one of the daughters, took on the 31st May, 1796, a bond of indemnity for 400/ then paid, and afterwards, in 20th may, 1800, Catharine, and her father, representing her as of age, executed a release. She afterwards proved that she was at that time above eighteen, but under twenty one, and recovered her share. At, that time, her father received three hundred pounds. The measure of damages on eviction is the purchase money, and interest from eviction, when there is no fraud. Probably Hamilton thought, as. well as the appellants, a woman is of age at eighteen, an opinion two common, and originating from our act of assembly directing female children to be bound as apprentices till that age. The appellants then are entitled to 400/, 1066,66 And interest from 16 May, 1825, the time judgment in ejectment was confirmed, till 24 June 1825, when the money was raised, 6,89 The costs on the ejectment 327,48 Counsel fees for two trials in Common Pleas and Supreme Court. 200,00 Costs in Supreme Court. 40,97 Mesne profits agreed to be 300,00 1743,00 The court direct that proof be received as to whether the judgment of Grayson assignee of Whitaker executor of Bay, was on a bond in which George Jenkins was the principle and J. Hamilton the surety, or whether Hamilton was Me principle debtor. The paper filed on the affidavit of Wm. Jenkins being in the hand writing of the counsel in the cause, although not good as an affidavit, yet considered as a paper signed and filed, by William Jenkins, one of the assignees of G. Jenkins, and which disclaims all right to the money, is enough to put us on further inquiry. It was said the administrators of G. Jenkins, were entitled to this money, but this is not so, unless the assignees of G. Jenkins have paid all the debts he owed at the time of the assignment in trust for his creditors. Notice for taking depositions must be served on the assignees of G. Jenkins, and also on his administrators. And this sum on Grayson’s judgment to be retained until the hearing of that matter. That the appellants receive the amount above stated, of seventeen hundred and forty-two dollars, and that the remaining sum except the amount of Grayson’s judgment, be distributed according to the decree of the court, except that the interest of the judgment of Catharine Henderson, and Watson’s executors, is not toba calculated after the 25th of June, 182 5.