Logue's Appeal

The opinion of the Court was delivered, September 27, by

Knox, J.

This is an appeal from the decree of the District Court of Allegheny county, on the distribution of a fund raised by the sale of the real estate of John Grail.

The court below, upon the report of an auditor, decreed in favor of a judgment belonging to Clarence Shaler, from which decree Logue appeals.

It is admitted that Shaler’s judgment, as it stands upon the record, has priority of lien; but the appellant alleges that when the property was being sold, Mr. Woods, his attorney, who was attending the sale for the purpose of protecting his interest, was induced to cease bidding, upon the promise of Shaler that his (Loguo’s) judgment should be paid. This is denied by Shaler.

It is unnecessary to determine in this proceeding, whether an agreement by one judgment creditor, to pay a subsequent judgment upon consideration that its owner would refrain from bidding at a sheriff’s sale, would be binding in law.

If such an agreement was made, and if valid when made, the remedy is by an action at law. An auditor, in distributing a fund in court, must sometimes determine controverted facts. But this is from necessity. Where such necessity does not exist—Where there is ample remedy by action at law, the constitutional tribunal for the determination of facts should be resorted to.

The decree of the court below is affirmed at the cost of the appellant. Decree affirmed.