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PRINCE the day of August, 1810; but no attachment of
property was made thereon :--on the 19th day of SepBART tember following, two suits of attachment, in favor of LETT. the United States, one against Wellman and one against
Ropes, issued in due form of law, directed to the mar. shall of the district or his deputy returnable to the district Court to be held in December then next ensuing.
On the 11th of October, in the same year, the goods, wares and merchandize beforementioned being in custody of Bartlett a sheriff of the county, and in a store hired by him for the purpose, Sprague, one of the Appellants, and deputy of Prince, the marshal, after the refusal of the sheriff to open the store, forcibly broke into it and seized, attached and conveyed away the property which had been attached by the sheriff in the manner before stated, by virtue of the executions and writs of attachment in behalf of the United States and disposed of it in satisfaction of the judgments.
Wellman and Ropes continued in business until the aforesaid 4th day of June, and then failed ; and then were and ever since have continued to be debtors unable to pay their debts. Wellman has continued at his usual place of abode in Salem ever since his failure, and has not for any whole day confined himself within his house, but has sometimes kept his person within doors, and had his doors fastened, and occasionally used other vigilance and caution to avoid any arrest of his person for two or three weeks next following the said 4th day of June, but has never been arrested by any officer, or pursued for that purpose : Ropes has always continued at large in Salem, and has never confined or concealed himself from his creditors at any time.
An action of trover was commenced by Bartlett, the sheriff, for the property by him attached as aforesaid, against Prince and Sprague, who had thus forcibly dispossessed him of it, in the Court of common pleas in Essex county, where, upon trial, judgment was rendered in favor of the Defendants. An appeal was prayed and granted to the Supreme Judicial Court of the commonwealth of Massachusetts, and at November term 1811, the cause came on to be tried upon the facts before stated. Upon the plea of not guilty and issue,
the counsel for Prince and Sprague insisted that the PRINCE several matters so alleged and proved in evidence on V. their part was sufficient to maintain the issue on their part, and to bar the Plaintiff of his action. This was LETT. denied by the counsel for the Plaintiff, and the judge who sat on the trial delivered his opinion to the jury, that the several matters produced and proved on the part of the Defendants, were not upon the whole case sufficient to maintain the issue on the part of the Defendants, and to bar the Plaintiff of his action. With this direction the jury found a verdict for the Plaintiff, and $ 10,240. 69 damages.
To this opinion of the Court an exception was taken and the proceedings removed by writ of error to this Court.
The sole question for the consideration of this Court is whether the priority to which the United States are entitled by law, attaches in this case.
This privrity is given by the 5th section of the act of the 3d of March, 1797, ch. 74. It is also given by the 65th section of the collection law in the words following: “ and in all cases of insolvency, or where any estate in the hands of the executors, administrators or assigns sball be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States on any such bond or bonds shall be first satisfied.” In the same section the legislature explain their meaning of insolvency by declaring that it shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall have made a voluntary assignment thereof; for the benefit of bis creditors, or in which the estate and effects of an absconding, concealed or absent debtor, shall have been attached by process of law, as to cases in which an act. of legal bankruptcy shall have been committed.
At present there is no existing bankrupt law in the 1 United States; but in many of the states provision is
made by law for the relief of insolvent debtors. In the act of congress of the 4th of August, 1790, the word insolvency only is used. In the acts lately passed on the same subject the words insolvency and bankruptcy VOL. VIII.
are both adopted and appear to be used as synonymous terms.
It is admitted that the property seized by the attachments and executions before stated was insufficient to satisfy the several claims exhibited, and that Wellman and Ropes were unable to pay their debts, but it does not appear that their property was attached as the ef. fects of absconiling, concealed or absent debtors; nor does it appear, or is it even alleged that they or either of them have made a voluntary assignment of their property for the benefit of their creditors; nor is it alleged that either of them has committed an act of legal bankruptcy. It appears to be the true construction of the act to confine it to the cases of insolvency specified by the legislature. Insolvency must be understood to mean a legal and known insolvency manifested by some notorious act of the debtor pursuant to law: not a vague allegation, which, in adjusting conflicting claims of the United States and individuals, against debtors it would be difficult to ascertain.
The priperty in question being in the possession of the sheriff by virtue of legal process, before the issuing the writ on behalf of the United States, was bound to satisfy the debts for which it was takon; and the rights of the individual creditors thus acquired could not be defeated by the process on the part of the United States subsequently issued.
The Court is of opinion that priority does not attach in this case, and that there is no error in the judgment of the Supreme Judicial Court of the commonwealth of Massachusetts.
THE ST. LAWRENCE, WEBB, MASTER.
A vessel sail. THIS was an appeal from the sentence of the United ing to an ene emy's mountry States Circuit Court for the district of New Hampshire.
The material facts of the case were as follow :
THE ST. LAW
war and taken
The ship St. Lawrence, Silas Webb master, was cap- RENCE, tured, on the 20th of June 1813, by the private armed WEBB, vessel América, and, with her cargo, libelled as prize, in MASTER. the District Court of New Hampshire. On the proceedings which were had there, it appeared that the St. Law. after knowrence, owned by Robert Dickey of New York, and Hugh
ledge of the Thompson of Baltimore, arrived at Liverpool from Swe- bringing from den in April 1813, with a cargo of iron and deals. In that country, the month of May 1813, the agent of Dickey and Thom. ing chiefly of son entered into a contract for the sale of the St. Law- enemy goods, rence, with the house of Ogden, Richards and Selden of fiscation as Liverpool, the contract to be ratified or disaffirmed by prize of war. Dickey and Thompson, and the bill of sale to be execu- Suppression of ted by them, in case of aifirmance, to Andrew Ogden and it appears to James Heard of New York, or either of them. On the have been in5th of May 1813, a license was granted by the privy and frauducouncil of Great Britain to Thomas White of London, lent, and atand others, permitting them to export, direct to the other suspiUnited States, an enumerated cargo in the St. Lawrence, cious circumprovided she cleared out before the last day of that month. stances, is good On the 30th of May 1813, she sailed from Liverpool for fusing further the United States, with the cargo specified in the license. proof.
But where the Mr. Alexander M'Gregor and his family were passen- suppression ap
owing to acci
dent or misUpon the return of the monition in the District Court, take and no Andrew Ogden interposed a claim, in behalf of himself other suspiciand M'Gregor, to the ship and part of the cargo. He also claimed another part of the cargo as his sole proper in the caseme ty. He likewise interposed a claim in favor of Selah may be allow Strong and Son-of John Whitten-of the firm of How-ed. ard, Phelps & Co. of Abraham and George Smedesof Peter and Ebenezer Irving & Co.-of Henry Van Wart-of Irving and Smith-of Jabez Harrison-of Hugh R. Toler--and of Thomas C, Butler. This claim was an affidavit of Mr, Ogden, in which he swore that he had not a full knowledge of the concerns of all the pere sons for whom he claimed, but verily and fully believed that many of the said goods on board the St. Lawrence were sent in payment of debts due, previous to the war, to several of the persons for whom he claimed. This claim was filed on the 17th of August, 1813.
gers on board.
pears to be
ous circumstances appear
William Penniman of Baltimore, also interposed a ST. LAW. claim for five chests of merchandize, which he swore RENCE, were purchased for him by John Barnet of London, prior
WEBB, to the war, with funds which he had in England eighteen MASTER. months before the declaration of war, and in pursuance
of orders given by him nine months previous to that event. He also swore that he had at Baltimore, the original invoice of the purchase of said goods, and other documentary evidence to prove the aforesaid fact.
There was also a claim of the master for two casēs and five tousses of merchandize, and six bolts of russia duck.
In none of these claims was there a designation of the marks or numbers of the casks, bales, or cases which helonged to the different parties for whom the property was claimed.
The master, in answer to the 12th standing, interrogatory, said, that for the names of the respective laders, he referred to the bills of lading. That the goods were mostly, if not all, consigned “to order.” That the goods were to be delivered to order, at such place as the owners or consignees should appoint; but that he did not know what interest any of the consignees or the shipper might have in the goods.
In answer to the 16th interrogatory, the captain stated that his letter bags, two in number, had been taken possession of, and sent to the custom house : and that, as to any letter he had, directed to the consignees or owners, he had done what he had a right to do; and that all his other papers had been forcibly taken away.
By Mr. M'Gregor's answer to the 9th interrogatory, it appeared that he was interested one half part in the ship; that his sole object in becoming interested in the ship was that of returning to the United States; that he also owned one half of the copperas and of the earthen ware on board, shipped by Ogden, Richards and Selden, and, as he believed, one half of the coal, but that, as to the last article, he was not positive, no invoices of said goods having been delivered to the deponent.