Dauphin, where it was tried, and a verdict found for the plain- 1808. tiff. The defendant after all this, moves in arrest of judgment, BENNER because the suit was not legally removed to the Supreme Court. He alleges two reasons against the removal.

1st. That the habeas corpus was left blank in many substantial places.

2d. That the return to the habeas corpus is signed but by one of the associate Judges of the Court of Common Pleas.

1. As to the first point, the fact is that a regular præcipe was given by the attorney for the defendant, for issuing the habeas corpus, but by inadvertency of the clerk, the writ, although allowed by a Judge of the Supreme Court and sealed with the seal of the Supreme Court, was left blank in material places. If there had been no præcipe, there would have been nothing to amend by; but as amendments have frequently been made by the præcipe, I think there can be no case more proper to allow it than the present. I am therefore of opinion that this writ may be amended by the præcipe.

2. The return by one associate judge is not good, because one judge cannot hold a court. But I observe it is said in the record, which is certified by the prothonotary under the seal of the court, that the suit was removed by habeas corpus. This affords reason for supposing that the court did in fact order the record to be returned in obedience to the habeas corpus; and it may be that it is only owing to the error of the prothonotary, that the record was sent up without a proper certificate. On the argument of this cause I feared there would be great difficulty in getting at the justice of the case; but upon reflection I am of opinion that the Circuit Court may send back the record to the Common Pleas, with permission to the Judges of that court to amend the return if they think proper. In the case of the King against The Mayor and Burgesses of Grampond, 7 D. & E. 699, a motion was made for leave to amend the return to a writ of mandamus after verdict. The Court of King's Bench refused to give leave to amend, because they did not think it proper under the particular circumstances of that case; but they had no doubt of their power, not under the statutes of feofails, but under the general authority of the court. It was there said that these amendments were reducible to no certain rule, but that each particular case must be left to the sound discretion of the court; and that the best principle seemed to be, that an amendVOL. I. 3 A

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FREY.

1808.

BENNER

V.

ment should or should not be permitted to be made, as it would best tend to the furtherance of justice. There is so much liberality and good sense in the opinion which I have cited, that I cheerFREY. fully subscribe to it. Let us apply the principle then to the case before us. Will the amendment of the return tend to the furtherance of justice? No one can entertain a doubt but it will; but whether the Court of Common Pleas will think proper to make any amendment, must be left to their own judgment. They know the truth of the case, and will no doubt govern themselves by the truth.

I am of opinion that the record should be sent back to them, with leave to amend if they think proper.

Wednesday,
April 6th.

The party

entitled to

ing judg

fendant's

M'KEAN for the use of DIXON'S Administrators against SHANNON and others.

Shannon and Poalk, in the course of their business as aucwho first tioneers, became indebted to Dixon, whose administrators brings suit upon an offi- on the 24th June 1805 brought suit on the official bond for cial bond is 5333 dollars 33 cents, returnable to September Term, in the priority of name of the Governor for their use. On the 25th June 1805, payment, alanother suit was brought on the same bond for the use of Abel though he is prevented Hyde; and on the same day another suit for the use of John from obtain- Sherwin. On the 2d July 1805, a fourth suit on this bond was ment by an brought for the use of Roar's administrators; and on the 26th order to stay February 1806, an amicable action on the bond was entered to proceedings upon the de-September Term 1805, for the use of the Commonwealth. On the 3d March 1806, a rule was granted upon the plaintiffs in paying the amount of all these suits to shew cause why proceedings should not be court. All staid, the defendants having paid into court the penalty of the subsequent bond, and the costs of the first suit. On the 9th May 1807, the same term attorney general had leave to take out of court 658 dollars are entitled 84 cents, the amount due to the Commonwealth for duties; pro rata; but if instead of and the above rule was continued from term to term until the suing they 31st March 1808, when it was made absolute. On the same day apply to the Ross for the plaintiffs in the first action moved for leave to take come in un- out of court the balance, or so much as was necessary to satisfy suit, priority their demand against Shannon and Poalk; and it was upon this of applica- motion that the present case arose.

the bond into

suitors to the

court to

der the first

tion will enti

tle them to priority of payment.

M'KEAN

Ross contended that by priority of suit he was entitled to the 1808. payment of his entire demand, if the balance in court was sufficient; Meredith for Sherwin, and M'Kean (Attorney general) for Roar, contended for a pro rata distribution among all the SHANNON. creditors who had brought suits to the same term.

For the plaintiffs. The law is explicitly stated by Chief Justice McKean in a note to Dallas v. Chaloner's executors, (a) that the person who first sues and obtains judgment on an official bond, is entitled to take the whole penalty, if his demand amounts to so much, in exclusion of every other claimant. And the doctrine was recognised by the whole court in Dallas v. Hazlehurst et al. (b) and carried still further; for in this case they say, that upon principle and authority the creditor first suing is entitled to be first and completely paid before other creditors are admitted. At all events, the priority that Dixon would have gained by getting the first judgment, he is entitled to in this particular case by commencing the first suit; for it must be presumed that he would have obtained the first judgment had not the court interfered by a rule to stay proceedings; and they certainly will not diminish his security by the rule. We have a clear legal preference, as in a suit against an executor, where among creditors of equal degree, the party first suing is entitled to be first paid. 3 Bl. Comm. 19. 1 Roll. Abr. 925. Cro. Eliz. 41. 1 Wentw. 143. 2 Wentw. 73. Shep. Touch. 457, 8.

For Sherwin and Roar. The note in 3 Dallas appears to have been only a dictum of the Chief Justice. It was not the point before the court; and it relates exclusively to the first judgment. In Dallas v. Hazlehurst, the court did not decide that the creditor first suing should be first paid; the case did not admit of such a decision. On the contrary, the record shews that a suit was brought for the use of Maria Gapper against Footman's sureties, which suit was afterwards suggested to be also for the use of James King, and that a judgment was obtained therein at March Term 1802. Gapper and King agreed together that the former should be first paid her

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1808.

M.KEAN

V.

whole demand, and that the latter should then come in for his. In March 1804 Price and Ketland, two creditors who never brought suit, petitioned the court for a pro rata distribution SHANNON. among all the claimants. But their petition was refused; the judgment was paid according to the agreement of Gapper and King; and therefore the only point decided by the court was that suit and judgment give a priority before creditors who never bring suit, which we do not deny. But here were four suits instituted within a few days of each other to the same term. As there was no defence, judgment must have been signed in all of them upon the same day, if proceedings had not been staid; and judgments on the same day are on the same footing. Emerick v. Garwood (a). The act of Assembly requires only that the day of the month and year of signing a judgment be set down, but not the hour of the day.

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

(a) 4 Dall. 321.

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had been suffered to go on to judgment, I know of nothing 1808. which could have hindered him from receiving full payment of MKEAN his demand. This is expressly laid down by McKean Chief Justice in the case of Dallas v. Chaloner's executors, 3 Dall. SHANNON. 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. Indeed it 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