*Laurens, Washington District.*

Heard before Chancellor Thompson.

case rrtfi

#### Bulows and Pope, *vs.*The Committee of Hugh O’Neall, a lunatic.

A creditor instituted a suit at law, against his debter, who Was in embarrassed circumstances, and had nearly obtained judgmenl; when another creditor filed a bill in equity, and obtained an injunction, restraining the former from proceeding at law, on the allegation, supported by affidavits, that the deb tor was lunatic, and unable to defend him. self, and judgments might be unjustly obtained, to the prejudice of other creditors.

Afterwards the debtor was regularly found to be a lunatic; anda committee was appointed to take charge of his person and affairs. Both, the above creditors then obtained judgments at law at the same time. The first suing creditor claimed priority of payment, in consequence NVof his having been delayed in his legal remedy by the injunction ; and the Circuit Court decided that h® was entitled to priority. But this de: ere? was reversed by the Court of Appeals.

Afterwards the subordinate points in the case, relative to the management of the lunatic’s estate, came on before the Circuit Court, on thfc report ef the cainmissioner.

*395Among other points, it Was decided. Ütat the committee were net liable to pay interest for monies in their hands, kept during the controversies among the creditors; and that the committee were not entitled to extra compensation for ordinary services.

Counsel fees paid by them, in the management of the estate, al-ío wed ; also the costs of suit.

FEB’Y. 1813.

The bill was filed to obtain payment of certain debts due by the lunatic to the complainants — 'and to settle the order of payment of these and other debts of the lunatic, and for other purposes.

After hearing the case, the Chancellor delivered the following decree:

This suit is instituted by the complainants, who are judgment creditors, against the committee of Hugh O’Neal, to recover from them certain sums of money in their hands, and those of other persons, in satisfaction of their claims.

It appears that Hugh O’Neal, prior to his lunacy, was largely indebted to the complainants, and also to Samuel Maverick, who anticipating the insolvency of the said Hugh O’Neal, had instituted his action in the Court of Common Pleas, for the recovery of his demand. ***

That pending the action at law, the complainants, Bulows, becoming alarmed about their debt, obtained an injunction* against the said Samuel Maverick, to stay *396proceedings on bis action, until they could institute their suit *;*and obtained a judgment contemporaneous with-his. That accordingly at the-■ term, 180— judg» incnt was obtained in favor of the said complainants, and the said Samuel Maverick, and executions thereon, simultaneously lodged in the sheriff’s office, for New-berry district. The said Samuel Maverick therefore, now interposes his claim, and by way of interpleader insista that he is entitled in equity to a priority of satisfaction on. his judgment. There are a number of points of minor importance, and which are deemed by the court immaterial in this case, insisted on by the counsel for the complainants. The great question in the ease is, whether the said Samuel Maverick is entitled to have his judgment first satisfied^ or whether the complainants shall come in, in average and proportion, according to their respective demands. And it appearing to the court clear beyond a doubt, that the said Samuel Maverick would have established his demand in the court at law, and thereby entitled himself to a satisfaction of his debt, had it not been for the interference of the said John and Charles Bulow, that in equity he must be considered as entitled to all the benefits and advantages which would have resulted to him, had it not been for their interposition :

It is therefore ordered and decreed, that the several persons having cash funds in their hands, pay the same over to the said Samuel Maverick, in extinguishment of his judgment, and the residue, if any, be applied to the discharge of the respective demands of the complainants,- and other judgment creditors, obtained at the same time. And it is further ordered, that each party pay his own costs.

From this decree there was an appeal, which was heard at Columbia, and the judges delivered the following judgment:

The decree of the circuit court has given a preference to Maverick’s judgment; hut as Maverick before the inquisition of lunacy had not acquired any legal priority, and Ms judgment and the complainants were obtained *397.and entered upon the same day, they ought to be put upon the same footing. The injunction granted against Maverick on the application of the complainants, was for the purpose ofletting in their debt equally with Maverick’s, in the event of Hugh O’Neal’s lunacy.

This having been found, these debts must he paid «•ateably and proportionably.

It is therefore ordered and adjudged, that the decree of the circuit court be reversed, and that all *iiio*costs of suit he paid out of the lunatic’s estate.

W. B.'James.

Henry W. Desaus sure.

Theodore Gailíarb.

Thus. Waties.

*

 After Maverick had instituted his suit at law, and made some progress therein, before any of the other creditors, they discovered that O’Neal, tile debtor had recently become lunatic, and was uai.ble to manage his affairs, or defend himself against any demands, haw ever pnjust, or subject to discounts. They therefore filed their bill its equity, to obtain an injunction, .estraining Maverick,.and all other creditors from proceeding at law, until the lunacy should be regularly established, and a committee appointed to defend the suits at law. After great argument by Mr. Cheves for the complainants, and Mr-Pavker, for the defendants, the injunotion was granted by Chancellor Desaussnve.

Subsequently, the lunacy was regularly established, and a committee appointed; and these contending creditors obtained judgments a' law, at the same time. But a contention for priority of payment still continuing, the committee refused to pay'any creditor, until the Court of Equity should decide on their respective rights, which was th& occasion of this guijt.

Afterwards-the subordinate points of the.case were brought on, upon the commissioner’s report, before chancellor Waties, who made the following decretal orders:

Yariousexceptions have been made on.both sides to the report of the commissioner in this case.

On the part of the complainants, the first exception' is, to the allowance of eight hundred dollars paid by the committee on a judgment of M‘Bowel and Blair against the lunatic.

This exception is over-ruled. The payment appears to have been made on a judgment regularly obtained before those of the complainants, and the balance due thereon was afterwards directed by an order of the court of common pleas for Newberry district, to be paid out of the proceeds of the sales made under the judgment •of the complainants.

A second exception is, that the commissioner ha» not charged the committee with interest on the sums of money collected by them on behalf of the lunatic.

This exception is over-ruled. The committee have held these sums as stake holders, until the clashing claims of the lunatic’s creditors were determined, and as such, ara not chargeable with interest*

*398A third exception is, that extravagant bills have been allowed for medical attendance on the lunatic.

There appears to be no grounds for this exception. It is ascertained that the medical assistance offered the lunatic has been greatly beneficial to *him;*and the expenses incurred on this account are not unreasonable :■ — They may indeed be said to be for the interest of the creditors, for if the lunatic be restored to his reason, (which seems to be confidently expected,) they may receive from his future exertions the Mi payment of their demands. This, exception is therefore over-ruled.

A fourth exception is, to the allowance of costs for witnesses’ attendance in the court of common pleas.

This expence was a necessary one. The debts due to the lunatic could not be recovered without it, and it was for the interest of the creditors that witnesses should be summoned to prove these debts. The committee were, with respect to the estate of the -lunatic, (it being an insolvent one,) the trustees and agents of the creditors, and it was their duty, as such, to summon witnesses and employ all other necessary means for the recovery of the debts. This exception is therefore over-, ruled.

The exceptions on the part of the defendants, are,

First, — That the commissioner has not allowed a Credit for the amount of the atlornics’ costs due on suits brought on behalf of the lunatic, which could not be recovered from the parties, who were sued.

This exception is sustained. The committee were bound to bring suite for the recovery of debts due to the lunatic, in all cases in which they believed a recovery could be had, and they have sworn that they brought suite in no other cases. This was for the benefit of the complainants, and the other creditors, and if nothing could be recovered, the costs must be paid out of the funds of the lunatic.

A second exception is, that a credit has not been allowed to the committee for the sum of one hundred dollars, paid to S. Farrow, Esrp as a counsel fee on behalf fho lunatic.

*399I Nought at first that tins was an extravagant fee to *hv<*given by an insolvent estate, but as it appears that Mr. I’'arrow’s professional services were afforded in several cases in defending the interests of the lunaiie, this charge, must, be allowed, and the exception to the report in this respect is sustained.

A third exception on the. part of the committee, is, that the commissioner has not allowed a charge made by them for tiu-it extraordinary trouble, in managing the business of the lunatic.

This exception is over-ruled. The proof of extra services, and the necessity for them, have not been sufficiently shewn.

There were other exceptions taken on both sides, but they have since been abandoned.

The report is, therefore, confirmed in all other respects,

Thomas Waties, .