
    Edward Winslow v. Assignees of Ancrum.
    
      1825.
    
    Charleston
    This case came before the Chancellor on the report of Commissioner Elliott, to whom the case had been referred to ascertain the liens upon the estate of Jlncrum, prior to his copartnership with Chiffelle. He reported that there were two liens upon Ancrum’s estate anterior to the copartnership. One a bond to the heirs of Mrs Mary Frayer for the purchase money of the plantation on Savannah river called Laurel Hill, which bond was secured by a mortgage of the place. The balance of principal due, on the 7th of May 1824, was $5,240; to which add a year’s interest, which would be due on the 7th of May 1825, $367 : and $5,607 would be the balance due on the 7th of May 1825. The date of the bond was the 8th of February 1813.
    The other lien upon the estate was a bond to William Wightman, dated the 28th of July 1815, in the penalty of $13,000 to protect him against endorsements on other liabilities on account of the obligor. Upon this bond a judgment was obtained on the 23d of February 1816. The copartnership commenced in 1816. Wight-man claimed interest upon his bond, and further insisted that by the judgment he should have an equitable preference, not only to the $13,000, but for the entire amount of his advances, which would reach $32,000. As the judgment was for the penalty, the Commissioner sustained the objections of the assignees, and did not allow interest. The report proceeds, “ nor does there appear any reason sufficient to make the judgment include the whole of his demand and give him a preference to other creditors whose debts rest upon considerations equally legal and valid. Wightman seemed to have been under an impression that the assignees had countenanced the construction that he should be satisfied before the ere-ditors of the copartnership. Evidence has been adduced to this point, by which it is fully explained. Mr Henwood drew the schedule, and placed at the head of the list of debts the whole of Wightman! s demand, which induced this gentleman to believe that the assignees had thereby recognized his claim to priority. But Mr Henwood said, upon examination, that his object was merely to furnish the account of debts to be paid by the assignees, not to state the order in which they were to have been discharged, and included the judgment and simple contract in the amount of Wightman’s debts. The Attorney General is one of the assignees, and has also testified upon this particular. His evidence is that the schedule is a mere estimate of the debts, and not a statement of the actual and acknowledged amount; nor did they ever intend or intimate that they would pay any creditor but according to his legal right. From these circumstances I cannot sustain Mr Wightman’s claim to interest, nor extend his payment beyond $ 13,000, the amount of the penalty of his bond. I further report that Mr Edward Winsloio is admitted to be one of the creditors of An-crum and Chiffelle, under the benefit of their decree. The only funds remaining with the assignees are Laurel Hill, which is subjected to the balance of the judgment of Mrs Fraser and Mr Wightman, and about $4,000, the balance of Mrs Bennett’s bond, which was given for . the purchase of the steam mill. All which is respectfully submitted.”
    
      Prioleau, ■ for Wightman, excepted to so much of this report as rejected his claim to the whole amount of his debt, as stated in the schedule of debts annexed to . the assignment, and confined him to the penalty of his bond without interest. He argued that Wightman was entitled to full payment under the assignment, with interest> jje aiso contended that Wightman was a preferred creditor under the assignment.
    Thompson, Chancellor.
    I am of opinion that the Commissioner was correct in not allowing interest beyond the penalty of the bond. There have been cases decided whgre this Court has made this allowance, but they are of a peculiar nature, and not at all analogous to the present. For instance where the obligor postpones the recovery of the debt by his own act, as by injunctions or other delays, the Court as an act of justice will allow the interest to be calculated beyond the penalty.
    In regard to Wightman1 s being a preferred creditor, the Court differs in opinion from his counsel. The assignment was intended for the benefit of all the assignees, and his name being at the head of the list gives him no legal priority. With regard to the other exception, that he is entitled to come- in with the other assignees and put his simple contract debts upon a footing with their judgments and specialty debts, will not admit of an argument.
    It is ordered and decreed that the exceptions be overruled, and the report of the Commissioner be confirmed.
    
      Wightman now appealed.
    The following points were made byPrioleau, for the appellant.
    1. That the deed and schedule gave the whole of his demand of $30,000 a preference over other demands against the assigned estate of Ancrum.
    
    2. That in the event of his being confined to his judgment, he was clearly entitled to interest upon the whole amount from the date of the assignment, by virtue of the provision contained in the deed.
    
      
      Dawson cited Buller, 164. 1 Const. Rep. 127. Plow. 467. 1 M’Cord’s Rep. 503. 3Bro. C.C. 502. 1 M’Cord’s Rep. 28. 1 Bac. Abr. 417, tit. Bankrupt, letter E. 2 Bro. Par. Rep. 333. 340. 2 Anstr. 543. A
    
      Petigru, contra,
    cited Oainsford v. Griffith, 1 Saund. Rep. 51.
    Nov. 1825.
    de^here a ted a deed- of pay M^debts0 merely pia-Sm the schedule*6 gives themn©-preference"
   CmtiA, per

Johnson, J.

The claim of W. Wight-man to be preferred to the other creditors of Ancrum to the amount of his whole demand ($32,000) was founded solely on the construction of the deed of assignment, and was not the subject of reference to the Commissioner, and could not regularly come before the Court on exceptions to his report. The reference to him was to ascertain what were the liens on Ancrum’s estate prior to his copartnership with Mr Chiffielle, and could not embrace the deed which was subsequent.

There is nothing in the deed itself, however, which authorizes the conclusion that Ancrum intended this claim to be preferred, and it rests solely on the circumstance that the debts due Wightman stand at the head of the schedule of debts annexed to the deed, and hence it is concluded that they are first to be paid — but this deduction is clearly without foundation. Judging from the terms of the deed itself there is nothing which warrants it. On the contrary it is evident that it was the intention to provide for the payment of all the debts contained in the schedule as far as the fund would go without regard to the order in which they were placed. In any view therefore this ground of the motion Cannot be sustained.

The second ground presents the question, whether Wightman has or has not a lien on the estate of Ancrum for the interest which accrued on his judgment subsequent to its date 2

acTonsiVhe interest might on a judgment by suit on the judgment. The act particular ca-suit, and recovered on a bond for the penalty for tuaiiy^duejn-terest may be the judgment, naity; and of evidence will ie^presu-med to have for the coi-rect sum due.

As a general proposition there can be no question that jn an actjon at jaw founded on a judgment the plaintiff would be entitled to recover interest on the amount of juc^Sment’ without the aid of the act of 1815, which makes no change in the law except to authorize the sheriff to collect the accruing interest, without driving the plaintiffs to an action so to recover it. This point was long ago settled in the case of Lamkin v. Nance , an(j bas ever since been acted on. That was a judg-J ° on a simple contract debt; but the rule holds also on judgments on penal bonds, if in fact the amount of the penalty be actually due and owing for principal and interest at the time of the judgment rendered, Bonsal’s Exec. v. Taylor, 1 M’Cord’s Rep. 503; an(j in an action on such judgment the plaintiff may . . . J s, r J recover the interest on the penalty,

^ *s objected, however, that the condition of the bond, on which the judgment of Wightman against An-crum is founded, is not for the payment of money, but to anc* indemnify him from certain liabilities which he had incurred on account of Ancrum, and that the Court cannot see that they did at the time equal the penalty of ^ie k°nc¡, and that therefore interest should not be allowed, Neither the report of the Commissioner, nor the decree of the Circuit Court, furnish any information as to the fo^ whether liabilities to the amount of the penalty of the bond had been incurred by Wightman at the time judgment was rendered, and this Court has sought information of the counsel concerned in the case, but has obtained nothing satisfactory : we are therefore left in the dark as to the matter of fact on which this objection is founded. In the absence of any further light on the subject, if we refer to the judgment itself it must be presumed that the whole amount of the penalty was then due. The judgment is for that sum without any circumstances connected with it, tending to shew that it ought to be for less. Wightman was not bound to submit the condition of the bond to the jury, and to prove the damages by the breach under the act of the legislature. It was the privilege of the defendant, Ancrum, to compel him to do so by rule of Court, and if he neglected to avail himself of this privilege Wightman was at liberty, forthwith, to have taken out execution for the whole amount, (Mitchell v. Dawkins, decided in Columbia,December Session, 1824,) and his neglect to do so furnishes a conclusive presumption that the whole amount was due.

The lien of a judgment is as well for interestwhich may become due on it as for the principal debt.

It may be objected that equity would relieve against such a judgment. Be it so. But it would be required of the party complaining to shew, that the damages sustained were less than the penalty of the bond; and it is answered that in this case there is no evidence. Having established the position that, as between Wightman and Ancrum, he would have been entitled to recover interest in an action on the judgment, it remains to be seen, whether he has a lien on the estate of Ancrum for the interest as well as the principal sum.

The union of principal and interest is so closely blended, that it is impossible to separate them without doing violence to justice and common sense. They are, I think, justly compared to substance and shadow. It is impossible that one can exist. without the other. Remove the principal, and the interest no longer exists. Remove the interest, and the principal is divested of one of its legitimate appendages. The maxim partus sequi-tur ventrem appears to-me not inapplicable to their , condition. The case of Sims etal. Creditors of Rochelle v, Campbell et al. , decided in the Court of Appeals, at the last sitting in Columbia, is decisive on this question. Ro-cjiene was insolvent, and, on a bill filed in the Court of Equity to determine the rights of the creditors, the Court ordered that the judgment creditors should be first paid in the order in which they stood with respect to time. The judgment of Campbell and Chambers was before the act of 1815, and the first in order to be paid. The Commissioner, however, declined giving them a preference as to interest which had accrued subsequently to the. judgment ; but on a rule against him the Circuit Court ordered that the interest should also be paid, and this order was affirmed on an appeal to this Court.

I recollect also another case, the title of which has escaped me, and, not being able to find it among the reported cases, I presume it has been overlooked. It arose under the act of 1815. The question on a rule against the sheriff was, whether the interest accruing on the oldest of several executions against the same defendant should be paid in exclusion of younger executions, where the sum levied was insufficient to pay the whole; and the Court ruled that it was entitled to be preferred.

The decree of the Circuit Court is therefore reversed so far as it disallows the interest on the judgment, and it is ordered and decreed, that in the application of the trust fund in the hands of the defendants, Wightman be allowed, in addition to the principal sum of his judgment at law against Ancrum, the interest which has accrued subsequently to the signing of the judgment.

Decree reversed. 
      
      
         This case the Reporter has never seen. It is not reported.
     
      
       Vide ante, page 53.
     