
    [Lancaster,
    May 28, 1828.]
    SILVER, Appellant, against WILLIAMS and another, Appellees.
    The right of preference given to servants by act of assembly, out of the assets of a deceased debtor, is extinguished by their having taken from him single bills payable at a future day with interest.
    Appeal from the Orphans’ Court of Dauphin county.
    
      Martin Qreider, jr., died intestate, leaving some property, but not sufficient to pay all his debts. Auditors were assigned to apportion the assets. They rejected the demands of Williams and Dimmy, who claimed to be first paid their debts in full, due to th.em as servants of. the intestate, under the act of assembly which gives'a priority of payment to “physic, funeral expenses, and servants’ wages.” The Orphans’ Court reversed the decision of the auditors. From, that sentence of reversal this appeal was taken by Seiler, a creditor by single bill. Many depositions were produced on both sides; the most material of them given since the decision of the court below. It was contended by the appellant, that Williams and Dimmy never were domestic servants, and therefore entitled to no priority of payment,. 2. That, whatever their service was, Williams had left it a year or two before the intestate’s death.- 3. That each of them had taken a single bill from Greider, the intestate, for the money due: Dimmy a bill payable in one year, with interest, and with John Zerker as a surety for the money, bound jointly and severally; and Williams a singlé bill payable in nine months with interest, but without any surety. 4. That the bill to Dimmy was for money lent, as well as for wages.
    After a concise argument, chiefly , upon the facts, by Douglas for the appellant, and by Elder for the appellees, the opinion of the court was given by
   Tod, J.

As well as can be judged of proof from depositions, there is strong doubt whether the appellees ever were employed as domestic servants.

There is contrariety pf evidence; and the time of the completion of the service is not fixed eithér in the case of Dimmy or of Williams. We decide the case on a point relative to which there is, as to the fact, no dispute;- and, as to the law, no-diflerence of opinion on the bench. We all think that the right of preference of the appellees, as- servants claiming their wages, supposing them even to have once had such right, has been waved and extinguished by their taking from the intestate single-bills payable at a future day, with interest, and one of them with a surety. ■ The decree of the Orphans’ Court is reversed, and the report of the auditors confirmed. ' ....  