1808. บ. Lewis in reply. Words used by vulgar people are to be understood according to their usual signification; when they are FRAZER used in pleading, they are to be understood technically; and when a word of a fixed legal meaning is used by the legislature, TUNIS. it must be understood in that sense, unless it be accompanied by such explanations as evidently shew another sense to have been intended. It is for this reason that cases under the statutes of set-off do apply with great effect to the question before the court; for they ascertain the legal meaning of the term debt, when used by the legislature; and as there are no explanatory words in this act to give the same term either an enlarged or a restricted sense, the same meaning must be implied, as a necessary consequence. But the cases cited by Mr. Rawle do not apply. The rule of the civil law puts specialties upon the same footing with bonds, having a regard simply to the instrument; whereas our act of Assembly not only demands that there be a specialty, but that there also be a debt due and owing by specialty. These circumstances must both concur to bring the demand of Ruston within the fifth class of debts; and although we concede that here is a specialty, we deny that at the time of Dunwoody's death there was a debt due and owing by him to Ruston, but simply a demand on the part of the latter for unliquidated damages. 1. As to the meaning of the term debt. In legal acceptation it is a sum of money due by certain and express agreement; as by a bond for a determinate sum, a bill, or note &c.; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. 3 Bl. Comm. 154. Damages on the contrary are uncertain. The plaintiff has no certain demand till after verdict; and they are ranked by Blackstone under the head of property acquired by suit and judgment at law. 3 Bl. Comm. 438. 2. As to Mr. Rawle's authorities. There is no question that a covenant to pay a sum certain is a debt by specialty; and there is nothing in 2 Bl. Comm. 511. to shew that this was not the kind of covenant intended. The language implies that it was, as the commentator says "debts due on special contracts, or "upon bonds, covenants, and the like under seal;" and the authority cited by Blackstone, merely shews that it was the instru ment which the law regarded, as Wentworth considers "a debt "by obligation, a debt for rent, or damages for a covenant bre 1808. V. "ken," as having an equal pretension one to the other. Off. FRAZER Exec. 146. The passage from Godolphin is to the same purpose; one is the transcript of the other. It cannot be a matter TUNIS. of consequence whether the claim be debt or damages, where the only inquiry is whether the instrument, under which they accrue, is or is not a specialty. Benson v. Benson was clearly a debt by specialty. The trustee had money in his hands which he neglected to appropriate according to his covenant, and died. Parker v. Harvey is a loose note to be found only in Burn; and it does not appear whether the covenant was a general one, or whether there was a penalty. 3. As to the class under which this claim falls. It is probable that it must come under the general clause. The clause however is obscure; for if the phrase "without regard to quali'ty" refers to rank, it seems to be useless, as all below specialties are of the rank of simple contracts; it is most reasonable to presume that all that remained to be specified, are to be included in this comprehensive clause, without regard to their being secured by specialty or otherwise. TILGHMAN C. J. delivered the opinion of the court. This case comes before the court on a case stated for their opinion. John Dunwoody and Charles Dilworth, both deceased, entered into articles of agreement under hand and seal, with Thomas Ruston deceased, by which they covenanted to sell and convey to him a quantity of land at a stipulated price. Ruston paid several sums of money on account of this purchase, but Dunwoody and Dilworth failed in making the conveyance. Ruston brought an action of covenant on the articles of agreement against the administrators of Dunwoody, which was submitted to referees, who awarded 15467 dolls. 22 cts. to the plaintiff in that action. Dunwoody also entered into other articles of agreement under seal with Matthias Slough and Hunt Downing, for establishing a line of stages between Philadelphia and Lancaster; for a breach of which articles Downing claims a considerable sum from the estate of Dunwoody. That estate is insufficient for the payment of all the demands against it; and the question, now submitted to the court, is whether the claims under the said agreements are to be considered as debts by specialty, within the meaning of the 14th section of the act of Assembly of 19th April 1794, entitled "An act directing the descent of intestates' real estates" &c. The act of Assembly declares that "all debts owing by eve"ry person within this state at the time of his death, shall be "paid by his executors or administrators so far as they have 66 assets, in the manner and order following: 1. Physic, fune"ral expenses, and servants' wages. 2. Rents not exceeding 'one year. 3. Judgments. 4. Recognisances. 5. Bonds and "specialties; and all other debts shall be paid without regard to "the quality of the same, except debts due to the Common"wealth, the which shall be last paid.” It is not denied by the plaintiff's counsel that these articles of agreement are specialties; because they are writings under seal, which is the true definition of a specialty. But they contend that in order to be ranked in the 5th class, it is necessary that they should be debts as well as specialties, which they say they are not, because at the time of the intestate's death they were only claims for unliquidated damages. There is no doubt but the word debt is frequently understood as a sum of money reduced to a certainty, and distinguished from a claim for uncertain damages; and in this sense it has been taken in the construction of the British statutes authorizing a set-off, where there are mutual debts between plaintiff and defendant. But the question is whether it has not been used in a more extensive sense, and if so, whether it will not best answer the intent of the act of Assembly to construe it in its most enlarged signification. When the legislature undertook to lay down a rule for the direction of executors and administrators in the payment of assets, it must be supposed that it was their intent to direct them in all cases, and not to leave a number of important claims totally unprovided for. It was well known that demands frequently occur both of the nature of specialty and simple contract, which are not debts in the sense contended for by the plaintiff's counsel; and yet there is no description of claim in the act, other than a debt. It must likewise be supposed that the legislature turned their attention towards those books and those courts in England, which treat and take cognisance of the payment of debts due from deceased persons. The order of payment of those debts is not directed by statute, but probably de 1808. FRAZER υ. TUNIS. υ. 1808. rived from the civil law, and adopted by the ecclesiastical FRAZER Courts. The cases cited by Mr. Rawle from Godolph. Orph. leg. part 2. ch. 28. sec. 7. 1 P. Wms. 130. Benson v. Benson, TUNIS. and Viner title Executor 2. O. pl. 39. prove incontestably that a claim for unliquidated damages, founded on a specialty, ranks equally with a debt on bond. The only answer attempted to be given to these cases is, that our act of Assembly speaks only of debts by specialty, but the ecclesiastical law of England regards only the instrument by which the demand is created, whether such demand be of the nature of debt or damages. This answer does not meet the difficulty. The order of payment of debts in England is not regulated by statute; the point to be inquired of therefore is, whether approved writers on the ecclesiastical law do not speak of this kind of claim as a debt. The words of Godolphin, which have been adopted by subsequent authors, are, "between a debt by obligation, and a debt for damages upon a "covenant broken, there is no priority." If we are to have recourse to the origin, (the latin word debitum, a thing that is due or owing) I see no reason why a compensation for breach of contract may not be due, although not reduced to a certain sum. But it is needless to examine whether this extensive meaning is so strictly proper as that in which it is generally taken in the common law. It appears sufficiently, that the legisla ture had authority for using the word in that enlarged sense, which manifestly best answers their intent; for, to construe it otherwise, would leave a numerous class of creditors unprovided for, and consequently postponed without reason to all others. It was suggested though not much urged by Mr. Lewis, that claims of this kind may be included in the general description of all other debts, which are directed to be paid without regard to their quality. The expressions without regard to quality do at first view seem to give some little colour to this construction; but it is to be remarked in the first place, that this is in direct contradiction to the whole scope of the plaintiff's argument, which is founded on the position that a claim for damages is not a debt. Then as to the words "without regard to quality," there is no difficulty in perceiving why they were introduced: the five first classes comprehend all kinds of debts, but those by simple contract. Debts by simple contract are of various qualities: verbal contracts, notes of hand, bills of exchange &c. The act of 1705 gave protested bills of exchange a preference to almost all other debts of the nature of simple contract. The act now under consideration repeals the act of 1705; and the object of 1808. the words, without regard to quality, was to place all simple FRAZER contract debts on the same footing. Upon the whole then it appears that the 14th section of the act in question is capable of two constructions, without doing violence to its expressions. The court have no hesitation in saying that it is most consistent with good policy, with justice, and with the intent of the legislature, to consider all claims founded on contracts of the nature of specialty as debts by specialty. It follows that the claims of Ruston and Downing, mentioned in the case stated, are debts by specialty. V. TUNIS. RUGAN and another, assignees of SAMUEL WEST a bankrupt, against WILLIAM WEST. THIS Saturday, The 56th act, which commission ment conclusive evidence HIS was an action of Trover which was tried under the general issue before BRACKENRIDGE J. at a Nisi Prius in section of December last. Samuel West was the surviving partner of John the U. S. bankrupt West, and an administrator to his estate, in which characters he was possessed of all the personal estate of John, and traded makes the upon it for his own account from 1797, the year in which John and assigndied, to the autumn of 1800. The defendant was the guardian of John West's children, and on the 7th and 8th October 1800, of the traobtained from Samuel, who was at that time embarrassed, an assignment of several bonds, notes &c. in trust for the children. cy in all On the 25th November 1800 a commission of bankruptcy was cases where issued against Samuel, under which he was declared bankrupt; and the plaintiffs, who were chosen assignees, instituted the secute any present action to recover the property thus assigned to the bankrupt for defendant. any debt duty or demand, of bankrupt the assignees shall pro debtor of the ply to an ac The counsel for the plaintiffs, after opening their case, gave in does not apevidence the commission of bankruptcy, and the assignment du- tion of ly acknowledged before a judge of this court; and they then signees. offered in evidence the original proceedings before the commis- The prosioners, which had been filed in the clerk's office of the District ceedings by the Commissioners of bankrupt are finished within the 51st section, when the commissioners have proceeded on the commission, examined the bankrupt and other witnesses, admitted the creditors to prove their debts, and assigned the bankrupt's estate. And when filed in the District Court, certified copies thereof are prima facie evidence against all persons, of the commission, trading, and act of bankruptcy. |