
    
      MEEKER’S ASS. vs. WILLIAMSON & AL.’S SY.
    
    Appeal, from the court of the first district.
    cause,*0 facts they suggest 111 opposi. tothe claim, be tried by jury,
   Mathews. J.

delivered the opinion ofthecourt. This is a case in which the plaintiffs and appel-lees claim a priviledge on the proceeds of certain property, which belonged to the insolvents, and has been sold by the defendants and appellants,

The claim is made, in a summary way, on ⅛ motion for a rule, on the defendants, to she w cause why they should not be ordered to pay to the plaintiffs the money arising from the sale of the property: which rule having been marie absolute by the decision of the district court, the present appeal was taken.

On the part of the defendants and appellants, it is contended that this mode of proceeding is irregular and not warranted by law ; that it is an original suit and ought to have been insti- ' ' ■ . ' tuted by petition. In a case like the present, it is clear, from the records of our courts, that both modes (by motion and petition) have been indiscriminately resorted to. As proceedings in court, which may be necessary to a just distribution of the insolvents estate, are incidental to the original action bv which he makes a surrender of Jhis property, we are of opinion that the ranks and priviledges of the claims of creditors may be legally settled, without the formality and delay of an original suit-by petition. But, in the more speedy mode of proceeding by rule, facts be suggested by either party, and a be prayed for to try them, it ought to be allowed.

In this case, the defendant and appellants, in shewing cause against the rule obtained against them, answered by suggesting facts and praying a jury to try them.

We think that the district court erred, in refusing a jury to be summoned to decide the facts of the case.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be atmul-lért, avoidéd, and reversed} and it is ordered, adjudgéd and decreed ilhat the cause be sent back to be again tried, with directions to the district judge to order a jury to be sum-mOhed, as prayed for by the defendants and appellants, and that the costs of this appeal be paid by the plaintiffs and appellees.

Smith for the plaintiffs. Livingston for the defendants.  