M'Kean ex rel. Dixon's Administrators v. Shannon ( 1808 )

Tilghman C. J.

delivered the opinion of the court.

This action is brought for the penalty of an auctioneer’s bond, in order to recover a sum of money due from the auctioneer, for cash received on sale of the plaintiff’s goods at auction.

After the plaintiff commenced his action, several other creditors commenced suits on the same bond, at different times, but all returnable to the same term as the plaintiff’s suit. The defendants brought into court the amount of the penalty and costs of suit, whereupon proceedings were staid before Judgment. It was agreed that the debt due to the Commonwealth for duties should be paid in the first place; and it is now submitted as a question for the Court’s decision, whether the several persons who have brought suits, should have preference in payment according to their respective priority of suit, or whether they should all come in equally, pro rata.

If it was in the power of the court to distribute the money according to their discretion, it would be most agreeable to their ideas of equity to let all the creditors in equally. But they have no such power. The act of Assembly under which the bond was taken, is silent as to the mode of proceeding on it. 2 St Laws 777. 27th March 1790. The case must therefore be governed by the general principles of the law. If the plaintiff had been suffered tt> go on to judgment, I know of nothing which could have hindered him from receiving full payment of' his demand. This is expressly laid down by MiKean Chief Justice in the case of Dallas v. Chaloner’s executors, 3 Dall. 501. note, as the settled rule in suits on official bonds. But it is said that in this case there is no judgment, and therefore it is not within the rule. But why is there no judgment? Not by any fault of the plaintiff, but solely because the court has ordered the proceedings to be staid, on the money being brought into court. When the court make orders of this kind for the protection of a defendant, they will take care that the plaintiff receives no injury. The plaintiff having brought the first suit, it must be presumed that he would have obtained the first judgment. Indeedit has not been shewn to my satisfaction, that any other person could bring a second suit on this bond. I am therefore clearly of opinion that the plaintiff is entitled to be paid the whole of his demand in preference to the others.

But as there will be a surplus after satisfying the plaintiff, how is that to be disposed of? We are not without a precedent to assist us in this respect. In the case of Dallas v. Hazlehurst, 4 Dall. 106. note, a suit was brought on an auctioneer’s bond for the use of Mrs. Gapper, which was marked on the record, before judgment, to be also for the use of James King. The order of the court was that Mrs. Gapper should be paid first, and then King. Now although it turned out that there was more than enough to pay both, yet the order gives an express priority to Mrs. Gapper. After the judgment was entered, other persons who were creditors, petitioned the court for leave to take the money among them; and their petition was granted; but there was no dispute about priority, for they settled that matter among themselves. In the case now before the court, I know of no rule so reasonable as to consider the action first brought as being for the use not only of the plaintiff who brought it, but also after him for the use of the several other persons who brought suits. If instead of bringing suits they had applied to the court for permission to enter on the record that the first suit was for their use also, the court would I conceive in granting that permission have governed themselves by the principle adopted in Dallas v. Hazlehurst, viz. that priority of application gave title to priority of payment. But in the present case the actions being all brought to the same term, the applications to the court must be considered as all made at the same time-

Upon, the whole of this case I am of opinion that the plaintiff is entitled in the first place to receive payment of his whole demand, and the surplus is to be distributed equally pro rata among the other persons who have brought suits to the same term.

Brackenridge J.

concurred in opinion with the court that Dixon was entitled to payment in the first instance; but he said he had not fully made up his mind as to the distribution between the other creditors.