The ship Robert Fulton.

litigation. This course is indispensable, in order to avoid a clashing of jurisdiction.

So far as respects the appellants, they had made their election, as they had a right to do, to proceed in the State Court to enforce their lien; and whatever rights they had thereby acquired, could not be taken away by the District Court against their consent: And if, as I consider it, the claim and petition of the appellants was an assertion of that right, the Court erred in not leaving them to prosecute their claims in that Court, or at all events, giving them the election, as was done with respect to others, who had taken out attachments under the state laws.

Whether the appellants have acquired any priority in the satisfaction of their claim, by virtue of the attachment sued out by them, is a question not necessary here to be decided. That is a question for the State Court. The mode and manner of proceeding under the state law, after the return of the attachment, in order to obtain satisfaction of the claim when established, is, perhaps, not free from some difficulty, as was suggested by the Supreme Court of this state, in the case of Murray v. Fitzpatrick, which came up on a writ of error from the Mayor's Court of New-York, on a judgment obtained on proceedings under this law: And one of the grounds urged for reversing the judgment was, that it could not be executed. In answer to which, the Court said, that was a point to be determined by the Court below. If the judgment was such as the law prescribed, the Court could not say it was erroneous, because there might be a difficulty in its execution.

I do not mean to be understood as concurring in the intimation thrown out in the case I have cited, that the judgment is to be enforced by the Sheriff's keeping the property until the costs and damages are paid. This was an obiter sugges

d 3 Caines, 42.

The ship Robert Fulton.

tion only. This course might defeat the judgment altogether. For unless the owners come in voluntarily and redeem the property, it might be left to perish in the hands of the Sheriff. A statute never ought to receive a construction which may render it nugatory, if susceptible of any other. And I do not perceive any objection to obtaining satisfaction by sale of the thing attached, under an execution issued on the judgment. The third section of the act authorizes the Court after judgment by default or issue joined, to refer the accounts and demands to referees, as in cases of reference in other causes, under the act of the 27th of February, 1788, and by which act judgment is directed to be entered by the Court for the sum reported due to the plaintiff. And whenever judgment is obtained, execution may be issued thereupon. The venditioni exponas, or execution, however, in cases under that act, would be restricted to the thing attached.

These observations have been made, not because they were called for in the present state of the case before this Court, but to guard against an inference, that I supposed there would be some real difficulty in obtaining satisfaction of the judgment in the state Court. But I again observe, that that is not a question to be decided here.

If the appellants have come into this Court for the purpose of setting up their right to prosecute their claims in the state Court, under the attachment then taken out, and have established such right, the mode and manner of doing this, and the effect and operation of the state law upon such claim, must be submitted to that tribunal. If they were to be understood as having submitted to the jurisdiction of the District Court, and as now setting up their claim to priority of satisfaction, out of the proceeds of the vessel now in that Court, it would have then become necessary for this Court to give a construction to that act, so far as relates to any priority acquired un

e 1 Vol. R. L. 515.

f 1 Vol. R. L. 502. Act 2 April, 1813.

United States v. Clark.

der the attachment. But as I understand the appellants to deny ever having submitted to the jurisdiction of the District Court, and as I think the proceedings in this case do not show that they have, the decree of the District Court, so far as it relates to the appellants, must be reversed, and the libel as to them dismissed with costs; to the end that they may be at liberty to prosecute their claim in the state Court, under the attachment sued out by them, as set forth in their petition and claims filed in the District Court.

THE UNITED STATES V. DANIEL P. CLARK.

An assignment under the act of Congress, of 1797, to entitle the United States to their priority, must be an assignment of all the debtor's property: That is, the assignment must be a general one as opposed to a partial assignment, or an assignment professedly of a part only of the debtor's property. Where there is an omission of an article of property in an assignment which purports to be general, but which does not show that the intention was that the assignment should be a partial as opposed to a general one, it does not take the case out of the act.

If the assignment does not on its face appear to be general, the onus probandi is on the United States.

The priority of the United States does not attach by the mere concealment of their debtor while insolvent. The "legal bankruptcy” mentioned in the act applies only to cases of legal insolvency, where by operation of law the debtor's property is taken out of his hands to be distributed by others.

An assignee is not liable under the act until notice of the debt due the United States. But the notice need not be given by the United States, nor is a judg ment or suit against him necessary in order to charge him with notice. The notice must be such as is required in ordinary cases of trustees, and enough to put a prudent man on inquiry.

United States v. Clark.

Where the debtor, at the time of making the assignment, informed the assignee that he was surety on a bond to the United States, and that he believed the bond was broken, it was held sufficient notice to the assignee.

The bond on which he was such surety was a pay master's bond, conditioned that the latter should well and truly account for and pay over all monies received by him as such paymaster: Held, that the debt of the paymaster to the United States was created by the advances made to him, and not at the time of striking a balance of account against him on the Treasury books; and that the surety became a debtor as soon as the paymaster failed to account according to law.

And it was held, that it was not necessary that the debt of the surety should be ascertained by a judgment against him in order to make the assignee chargeable with its payment; but that the latter might in the action against himself have the benefit of any reduction to which the surety was entitled. Where the United States are entitled to a priority, they can bring an action of assumpsit against the assignee for monies received by him under the assign

ment.

The article omitted in the assignment was a debt from the assignee to the debtor of the United States, growing out of a previous partnership between them. After the making of the assignment the assignee gave the debtor his bond for the debt: Held, that if the bond was given for monies of the debtor in the assignee's hands at the making of the assignment, the amount might be recovered in assumpsit, but not if it grew out of unsettled partnership con

cerns.

Where assumpsit is brought against an assignee, and he has funds which cannot be reached by the action, it seems, that he is not entitled to a deduction for his expenses incurred in the preservation of the property, and the execution of his trust.

Where a part of the assigned property had been sold at auction under the direction of the assignee, it was held enough prima facie to show that he had received the price for which it was sold.

THIS was an action of assumpsit for money had and received, to recover of the defendant certain funds of Gilbert Stuart, a debtor of the United States, which had come to the hands of the defendant; the United States claiming the funds by virtue of the priority given by the 5th section of the act of March 3d, 1797.

The defendant pleaded the general issue.

United States v. Ciark.

Gilbert Stuart and another became sureties on a bond to the United States, with Joseph B. Stuart, the principal, a paymaster in the army, on the 10th of July, 1813. The bond was joint and several, in the penalty of 7000 dollars, conditioned, that the said Joseph B. Stuart, the paymaster, should faithfully perform the duties of paymaster of the - regiment, and should account for and pay all monies which should come to his hands as such paymaster.

By transcripts from the Treasury Department, it appeared that the paymaster's account was dated December 20, 1819, and a balance of 18,000 dollars and upwards was then due by him to the United States. All the items both of charge and credit were prior to the 15th June, 1815.

On the 28th of August, 1819, Gilbert Stuart kept concealed to avoid arrest by his creditors, being deeply insolvent.

On the said 28th of August, 1819, Gilbert Stuart being thus insolvent, made an assignment of his property to the defendant and John Stuart, jun., providing for all his creditors to be paid according to certain priorities. The schedules containing the specification of the property conveyed, were entitled; "of the real property of Gilbert Stuart;"" of the personal property of Gilbert Stuart;""bonds and mortgages of Gilbert Stuart;" "notes and accounts of Gilbert Stuart;" "contracts for sales of lands of Gilbert Stuart." The schedules contained a minute detail of all the property. A notice was advertised immediately after the assignment, stating, that Gilbert Stuart had assigned his real and personal estate to John Stuart, jun. and Daniel P. Clark, for payment of his debts, according to the terms of the assignment. At the time the assignment was made, it was declared by Gilbert Stuart to John Stuart, jun. that it was to contain all his property, and after the execution of it that it did so contain.

Within a few days before the assignment, John Stuart, jun. asked the defendant Clark, the other assignee, if he did not