IN RE PENNEY.
In re PENNEY, Bankrupt.
(District Oourt, W. D. Pennsylvania. --,1880.)
stipulation in a bond for attorney'& commissions in case of default ill sustained by the supreme court of Pennsylvania.
In Bankruptcy. Sur exceptions of the Dollar Savings Bank to register's report disallowing attorney's commission. Rogers &; Oliver, for Dollar Savings Bank, exceptant. Kennedy &; Doty, for assignee of J oho Penney. ACHESON, D. J. The real estate of the bankrupt having been sold under an order of this court divested of liens, the distribution of the fund arising from the sale was referred to the register, to whose .report the Dollar Savings Bank, a judgment creditor, has filed exceptions. The exceptions are to the disallowance, by the register, of the claim of the bank to attorney's commissions, upon its judgment. The register states, in his report, as the ground for disallowing the claim, that the "commissions were not liquidated in the judgment, and no process was issued for the collection of the judgment." The bond of the bankrupt upon which judgment was confessed provides that in case of default in the payment of the principal debt, or a:::lY instalment of interest, the obligor "shall also pay all fees, costs and expenses of collecting the same, in. eluding an attorney's commission of 5 per centum;" and the warrant of attorney accompanying the bond authorizes the confession of judgment "for the penalty of the said bond, with costs of suit and attorney's commissions, as herein provided," upon any default being made in the condition of the bond. Pursuant to the terms of the bond and warrant, judgment was entered in the court of common pleas, No.2, of Allegheny county, on February 14, 1878, in favor of the bank and against John Penney, the now bankrupt, "for the sum of $40,000, with costs of suit, · · · · to be released on payment of $20,000, with interest from May 1,1877, at the rate of 8 per centum per annum, and 5 per centum attorney's commissions."
The right of the bank to attorney's commissions was not conditioned upon the issuing of execution upon default in payment. It had the clear right to enter judgment therein, including such commissions. Does the judgment, as confessed, include the attorney's commissions? Undoubtedly it does. Schmidt and Friday's Appeal, 1 Norris,524. The judgment is forthe penalty of the bond, viz., $40,000, and is to be satisfied only on payment of the real debt, $20,000, with interest from May 1, Ib77, (at the rate the bank was authorized to charge,) "and 5 per centum attorney's commissions." The attorney's commissions are as much included in the judgment as is the interest, and as easily computed. Id. A. stipulation in a bond, or other instrument for the payment of money, that in case of the necessity of a resort to a. suit the debtor shall pay and the creditor may recover a per centageas attorney's commissions, has been sustained by repeated decisions of the supreme court of Pennsylvania, beginning with Huling v. Drexel, 7 Watts, 126, and ending with Daly v. Maitland, 7 Norris, 384. In this latter case, indeed, it was held that the specified commissions are under the control, and may be reduced at the discretion, of the court. I In the present case the Dollar Savings Bank does not insist upon the full 5 per centum commissions, but asks the reasonable allowance of 2 per centum only on the principal debt of $20,000. It is, therefore, not necessary now to determine whether, in the distribution of a fund raised by a judicial sale of real estate, the right of a judgment creditor to the attorney's commissions specified and included in the judgment may be called in question collaterally, and reduced if deemed excessive. And now, to-wit, May 24, 1880, the exceptions filed by the Dollar Savings Bank to the report of the register are sustained, and the court allow the attorney's commissions on its judgment asked for by the bank, viz.: the sum of $400, or 2 per centum on the principal ($20,000) of said judgment, and it . is ordered that said sum of $400 be paid by the assignees of the bankrupt to said bank.
IN BB Jrl'GONIGLB.
(Oirouit Oourt, w: D. Penn8ylfJO,nia. June 3,1880.)
BUKRUPTCY-AJ.mNDMENT OF RETURN TO ORDER 01'
In Bankruptcy. Sur petition of G. 1. Davis for amendment of return to order of sale, etc., and rule to show cause. Wm. H. Semler, for amendment to deed. Geo. M. Reade, for assignee. AOHESON, D. J. The register to whom the case was referred after the original order of sale was made, to ascertain the liens upon the bankrupt's real estate, recommended that' the order to sell be amended so that the real estate designated in his report as purparts Nos. 1 and 2 "be sold suqjcct to the lien of the judgment of the Heirs of Adam Moyers v. Jeremiah McGonigle j" that the real estate designated as purparts Nos. 1, 2,3 and 4 be sold "subject to the payment of the legacy of Michael A. McGonigle, when the different instalments fall due j" and that the "real estate of the bankl'upt be sold discharged from all other liens." This report the court confirmed absolutely May 9, 187'6. The order of sale was not formally amended, but the confirmation of the register's report was equivalent to an amendment. Why the register, in his recommendation, restricted the lien of the Moyer judgment to purparts Nos. 1 and 2, is not clear to me. It would seem to have been an inadvertence or clerical error. The original judgment had been revived, and manifestly at the time of the death of Jeremiah McGonigle, and at the date of the sale in this case, the four pieces of land designated as purparts Nos. 1, 2, 3 and 4 were bound by the lien of the Moyers judgment. However, as G. 1. Davis bought these four pieces, the mistake in the register's report is not material. From a careful examination of the whole record the following propositions appear to me clear-First. That the court