Appeal by Feather

The opinion of the court was delivered by

Huston, J.,

(who stated the facts.) — The return days of process, &c, brought into the Circuit Court from the Common Pleas, Quarter Sessions or Orphans’ Court, are fixed by act of assembly, and are the third Monday in March, first Monday in September, and second Monday in December, in each year. It Was objected here that as the certiorari removing the cause from the Orphans’ Court to the Circuit Court, is not returnable for some months, we cannot proceed with the hearing. Whatever may have been the case, when the appeal from the Orphans’ Court was direct to the Supreme *331Court, certainly a certiorari & not necesary to remove an appeal from the Orphans’ Court to the Circuit Court. This would seem to be a writ not issuable by the Circuit Court after judgment by any lower court. The certiorari and its return day are then laid out of the case. Is the appeal from the Orphans’ Court to be filed before the next sitting of the Circuit Court, in the county, or before the next return day? I think not before the latter. There could be no rule for filing exceptions, or non pros for not doing so until the return day next succeeding the appeal. It would expedite .business were it considered as returnable to the next sitting of the Circuit Court in that county; but under the existing laws, we cannot compel are-turn before the next return day. But here the appeal was filed,, and decided by the Circuit Court, and no objection on this’ account made, and an appeal taken to this court, where the-objection is first heard. We' think it cannot avail at this time, it is too late; and, generally, if a party goes to trial by consent, in a lower court, at an earlier- term than he was compellable to do, if he makes no objection then, his objection will not avail him after-wards — I am glad that in this case no injury is done to the party who alleged surprise.

The Orphans’ Court, in 1801, in accordance with tlio will, directed four hundred pounds to be put out at interest, on bond and judgment, binding lands, for the purposes mentioned in the will, the principal payable at the death of the widow. Instead of noticing the bequest of one thousand pounds to John, first and foremost, the remaining three hundred and fifty pounds, were divided equally among the children; a judgment creditor of John's got his share. We think this was wrong, but it is not before us, and we could not now remedy it if it were. The widow died in November, 1803, but the executors of Oblinger, to whom the bond was given, did not collect the money, nor- even bring suit till 1814, and the cause was not tried and money raised till 1828. The executors then brought it into the Orphans’ Court, and several questions were made as to the distribution. A person who had obtained a judgment against John claimed it, and the court decided against him: he then brought the record into court and showed that John had applied for the benefit of the insolvent acts; had assigned' to trustees for the use of his creditors, and been discharged. The court decided the judgment was no lien, and rightly. Whatever John's interest originally waq under the will of his father, in the lands of his father, yet when those lands had been sold, and the money brought into court, and was again put out to interest, it became personalty; the bond was a mere chose in action; and although judgment was after-wards entered on it, yet whoever heard of a judgment being a lien on another judgment? The court next decided that they could not award the money to John, as his interest was vested in *332his assignees, and it made no difference that the original assignees were dead, and no successors had been appointed. They would give time to apply to the Common Pleas to appoint others. This opinion was clearly right. If the debtor of an insolvent who has assigned, pays the insolvent, the assignees can compel him to pay again to them. If it were not so, our insolvent acts'would be a fraud on the creditors. And it would be strange if our courts were not bound to take notice of a general law. It does not alter the case that the application was not made by an assignee. Chancery when informed of a party in interest, not before it, always brings him in. But it has been said the statute of limitations has barred all claims against John, or that from lapse of time his debts are presumed to be paid. Our insolvent act of 1729-30, and every act since provides, that notwithstanding the discharge of the insolvent under the act, all debts due and owing from such debtor, and all and every judgment had and taken against him, shall stand and be good and effectual in law, to all intents and purposes, against the lands, tenements and hereditaments, goods and chattels of such debtor, which he or any other person or persons in trust for him at the time of his discharge, shall have had, or at any time thereafter shall or may be in any way seized or possessed of, interested in, or entitled to in law or equity. This would seem to put the statute of limitations out of the way in such case: but further, the court may, on consent of a majority in number and value of the creditors, make an order that the insolvent shall not be sued for seven years. If the statute of limitations runs against a person discharged under the insolvent laws, this order would put an end to all claims barred by a lapse of six years. I do not say that lapse of time, much greater than that allowed by the statute, will in no case raise a presumption of ¡payment. This will often be the case, when assignees act and have property in their hands. This however was not such a case as would justify the Orphans’ Court in, at once, considering these debts paid. Where a creditor returns no funds, but some debts not to be collected till after a certain event, (as here the death of his mother,) it would be strange to say the debts were to be presumed paid before the fund came to hand. This is however a matter to be decided in the Common Pleas. The Orphans’ Court were right in detaining the money until assignees should appeal. ^ Those assignees will be trustees for the creditors, and for John, if there are no creditors, or there be a surplus after payment of his debts. We think, however, that a time should have been limited within which the creditors should apply and get assignees; John is not to wait forever in suspense; we therefore confirm this part of the decree, with this addition, that if the creditors do not apply, and get assignees who will give security at *333next term of the Common Pleas, in August, 1830, that the money be paid to John Oblinger or his lawful attorney.

There was another matter mentioned which admits of no doubt. One of the sisters prayed the money awarded by the decree of the court, to be paid to her. There was an appeal to the Circuit Court, and a few minutes or a few hours elapsed before the recognizance of bail could be drawn up, and bail brought before the court, but it was done the same day, and before the court rose. And the court refused to order the money instantly to her; most clearly the court were right. To have given it to her, under such circumstances, while the recognizance was writing, and bail coming in, would have been grossly wrong. The decree, with the addition above mentioned, is in all respects confirmed.

Decree affirmed.