Baker's Appeal , 21 Pa. 76 ( 1853 )

Lowrie, J.,

dissented.

The deeree was affirmed; but subsequently the Court was informed that a mistake existed as to the decree of the Court below, and a rule was granted to show cause why the decree should not be reformed, and a decree made according to the principles indicated in the preceding opinion.

Lewis, J. — It is suggested by U. V. Pennepaeher, Esq., that the decree of this Court affirming the distribution ordered by the Court below, is not in conformity to the principles indicated in the opinion filed.

Upon inspection of the paper-book it appears that the Court below expressed the opinion, “that the creditors of the old firm, are delayed until the payment of the debts due to the creditors of the new firm,” — “that the creditors of the new firm will come in on the fund for distribution before the joint-creditors of the old firm;” and sent the cause “back to the same auditor for correction on this basis.” It further appears that the auditor reported a distribution stated by him to be “ among the- creditors of the new firm, pursuant to the directions of the Court.” In this distribution the dates of the debts claimed are not stated, nor does it appear distinctly that by the term “ new firm,” the Court below intended the last of the three firms; but as that was the “ new firm,” and as the principles contained in the opinion filed, indicated the propriety of distributing the assets among the creditors of the firm last engaged in business, composed of the two persons who made the assignment, it was supposed that the distribution below was among those creditors, and for that reason the decree was affirmed.

In order that the alleged mistake may be corrected, if shown to exist, it is ordered that a rule be granted to show cause why the deeree entered in this case shall not be reformed, and the case committed to John K. Pindlay, to report a decree of distribution according to the principles indicated in the opinion of this Court on file. The rule to be heard on the 26th of July, 1853, and notice to be given by Mr. Pennepacker to all the parties interested, or to their attorneys; and the record not to be remitted until this rule is disposed of.