of payment under the acts in question and a judg- CHAP. 1. ment creditor, and however doubtful this question may have been left by the commentary of the court upon that case in Conrad v. The Atlantic Insurance Company, a decision of it unfavorable to the judgment creditor would seem to be little in accordance with the judicial construction in reference to other kindred questions which these acts have uniformly received. In the first reported case which arose under them, it was unequivocally declared that they created no lien in favor of the United States; and this declaration has often been repeated and acted upon since. But a judgment creditor surely has a lien in regard to the debtor's lands, general though it be, until rendered specific by an actual levy; and how can it be displaced by rights falling short of a lien? It is proper to add, however, that in the more recent case of Brent v. The Bank of Washington (10 Peters, 596), the court appear to have considered this question still an open one; for, speaking of the priority of the United States, they say “it has never been decided that it affects any lien, general or specific, existing when the event took place which gave the United States a claim of priority."

In the case of Brent v. The Bank of Washington, it was held that where the charter of a bank gave to the bank a lien on the stock held by a debtor for the payment of debts due to it, this lien would prevail against the priority of the United States.

The report of the case of The United States v. Mott et al., 1 Paine's C. C. Rep., 188, is not sufficiently exact, with respect to dates and some other particulars, to render it perfectly intelligible. But judging from the report, it would seem not to have occurred, either to the counsel or the court, that the fact of the defendants having a prior judgment, was a cir

PART 6. cumstance of any importance at all. The reporter, it appears, considered the case as turning upon a question of fraud in the assignment, though I do not perceive in the report any ground for such a conclusion.

4. Congress intended to define the insolvency which should bring the debtor within the law; and, as this term is used in these acts, it imports such a general divestment of property as would in fact be equivalent to insolvency in its technical sense.

It supposes that all the debtor's property has passed from him. A mere inability of a living debtor to pay his debts is not sufficient; but it must be manifested in one of the three modes pointed out in the explanatory clauses of the acts; and no evidence can be received of the insolvency of the debtor, until he has been divested of his property in one of these modes; for, while he continues to be the owner, and in possession of the property, the priority does not attach, though he may in fact be unable to pay his debts.

And the "voluntary assignment" of the debtor's "property" mentioned in these acts, means all his property. Had the legislature contemplated a partial assignment, the words or part thereof, or others of similar import, would have been added 3 Cranch, 73; Prince v. Bartlett, 8 Cranch, 431; Thelluson et al. v. Smith, 2 Wheat., 296; 1 Peters, 386; 12 Peters, 102; The United States v. Clark, 1 Paine's C. C. Rep., 629.

When the debtor is divested of his property in one of the modes specified in the acts, the person who becomes vested with the title, is thereby made a trustee for the United States, and is bound to pay the debt first out of the proceeds of the debtor's property, saving, however, the rights of mortgagors and other prior incumbrancers. See, also, as to the duties

and liabilities of the assignees of the debtor. Field CHAP.1. et al. v. The United States, 9 Peters, 182.

5. Corporations are to be considered persons within the provisions of the fifth section of the act of 1797. Beaston v. The Bank of the United States, 12 Peters, 102.

6. The priority of the United States confers no right to take the property of a partner from partnership effects, to pay a separate debt due by such partner to the United States, when the partnership effects are not sufficient to satisfy the creditors of the partnership; it being a well settled rule, that the interest of each partner in the partnership property, is his share of the surplus, after the partnership debts are paid; and that surplus only, is liable to the separate debts of such partner.

7. The priority of the United States attaches as well with respect to debts owing but not yet payable, as with respect to those already payable when the insolvency or death of the debtor occurs. The United States v. The Bank of North Carolina, 6 Peters, 29.

8. In the case of The United States v. Clark (1 Paine's C. C. Rep., 629), it was held that an action of assumpsit for money had and received, founded on the right of priority, might be maintained by the United States against the assignee of the debtor, to recover the proceeds of the debtor's property; and that it was not necessary that the debt should first be ascertained by a judgment against the debtor. Such an action would, however, of course, require the same proof of indebtedness, and be open to the same defense as a suit against the debtor.

The suit in that case was against the assignee of a surety in the paymaster's bond; and it was held that the debt of the paymaster to the United States was created by the advances made to him, and was

PART 6. to be considered as having accrued, so as to constitute the surety a debtor of the United States, as soon as the principal failed to account for the public moneys advanced to him, as required by the condition of his bond-without regard to the time of striking the balance of his account on the treasury books, or to the time of commencing the suit.

It was also further held that an assignee is not liable until after notice to him of the debt due to the United States; but that such notice need not be given by the United States, and need only be such as would be sufficient to put a prudent man on inquiry.

It may not be amiss to add, that whatever ground for doubt there may have been, heretofore, while all contracts made in pursuance of the laws regulating the post office establishment, were made with the postmaster-general, whether debtors under such contracts came within the operation of these acts, there can be none now, since, by the act of July 2, 1836, all contracts of this description are required, thenceforth, to be made "to and with the United States." 1

CHAPTER II.

IMPRISONED DEBTORS.

While the acts of congress, collectively, provide for the liberation of all insolvent debtors imprisoned on executions issuing from any court in the United States, they divide such debtors into three distinct classes, and prescribe for each a different form of relief. It is proposed to state the provisions now in force, relative to each of these classes.

1. By the act of June 6, 1798, entitled "an act pro'Ch. 270, § 13: 5 Stat. at Large, p. 80.

viding for the relief of persons imprisoned for debts CHAP. 2. due to the United States," it is provided (sect. 1).

"That any person imprisoned upon execution issuing from any court of the United States, for a debt due to the United States, which he shall be unable to pay, may, at any time after commitment, make application in writing to the secretary of the treasury, stating the circumstances of his case, and his inability to discharge the debt: and it shall thereupon be lawful for the said secretary to make, or require to be made, an examination and inquiry into the circumstances of the debtor, either by the oath or affirmation of the debtor (which the said secretary, or any other person by him specially appointed, are [is] hereby authorized to administer), or otherwise, as the said secretary shall deem necessary and expedient, to ascertain the truth; and upon proof being made to his satisfaction, that such debtor is unable to pay the debt for which he is imprisoned, and that he hath not concealed, or made any conveyance of his estate, in trust for himself, or with an intent to defraud the United States, or deprive them of their legal priority, the said secretary is hereby authorized to receive from such debtor, any deed, assignment or conveyance, of the real or personal estate of such debtor if any he hath, or any collateral security, to the use of the United States; and upon a compliance by the debtor, with such terms and conditions as the said secre tary may judge reasonable and proper, under all the circumstances of the case, it shall be lawful for the said secretary to issue his order, under his hand, to the keeper of the prison, directing him to discharge such debtor from his imprisonment under such execution, and he shall be accordingly discharged, and shall not be liable to be imprisoned again for the same debt: but the judgment shall remain good and sufficient in law, and may be satisfied out of any estate which may then, or at any time afterwards, belong to the debtor."

The second section declares false swearing under the act to be perjury, and by reference to an expired act of earlier date superadds the further penalty that "the court upon the motion of the creditor, shall re'Ch. 49, sec. 1:1 Stat. at Large. p. 561.