
    Simon Mairs, et. al. vs. Eliza Smith.
    The assignees, under an assignment of an insolvent debtor, take the property, subject to all the incumbrances, liens, fee. and in the same manner, to which it was subject in the hands of the assignor.
    The property assigned is not to be ratably and proportionally divided among suing creditors, and all other creditors, who come in for a dividend; hut creditors maintain their liens, in the same Order as against the debtor, Wore the assignment.
    ’íried before bis honor the Recorder.
    This was a rulé upon Mr. King, to shew cause why he should not pay over to. the Assignees of Eliza Smith, the the monies in his possession, arising from property sold in tha cas^s of Adger and Black, and Milliken and Primeros^ against Eliza Smith, in order that these monies be distributed by the Assignees according to law.
    On the 3d July, . 1823, Eliza Smith filed her petition for the benefit of the insolvent debtor’s act, to which, at the same time, her schedule was annexed.
    On the 9th October, 1823, some of the creditors of Eliza Smith filed a suggestion of fraud against her, under which she w'as remanded to jail, but upon an appeal to the constitutional court, she was by thetij discharged; after which, on the ,26th January, 1824, she took the requisite oath.
    In January term, 1824, the city sheriff was ordered, upon motion, to pay certain monies in Ins hands'arising from,sales tiaderji.fd’s. against E. Smith ads. Milliken and Primerose, and Adger and Black, et. al. to the execution creditors in their order. The sheriff paid these monies to Mr. King' the Attorney of Adger and Black, and Milliken and Primerose, but before paying them away, Mr. King received notice from Mr. DeSaussure to retain them, as a motion respecting their appropriation would be made to this court., Mr. DeSaussure contended, that the money in. the hands of Mr. King, must be delivered to the assignees .of E. Smith, to be by them appropriated: _
    1st. To the payment of the prisoner’s jail fees, of the costs of suit under which she swore out, and of the costs for obtaining her discharge.
    2nd. To the payment of-her debts in the legal order; judgments of the same date, being put upon the same footing,
    
      Mr.Pepoon who appeared for creditors, who had not obtained judgments, but who were willing to come in and take a dividend of the insolvent’s effects, contended that the assignees were bound to pay the insolvent’s debts in average and proportion, according to their amounts, without regard to their nature, with the exception of specific liens and tha preferences pointed out in the qct.
    
      
      Mr. King contended, as tht monies under the executions of Adger and Black, and Mílliken and Primerose, were made by the sheriff, and paid over by him, before E. Smith swore out, that his clients were entitled to retain them exclusively; the assignees having no right to receive them under their assignment.
    The Recorder delivered the following opinion.
    It was agreed upon among the parties, that the money-in Mr. Ring’s hands, should be regarded as if it Were in the possession of the city sheriff and it is also agreed that ire deciding the. motion which has been made, I shall' dé», termine the order and mode in which insolvents effects shall ‘ be distributed by the assignees. All the questions which have been made, will be disposed of by ascertaining.
    1st. The rights of the assignees under the insolvents assignment? -
    •2nd. The order and mode in which the debts due by the insolvent ate to be paid by the assignees?
    1st. The question under this bead, is whether the .assignees are entitled to all the property of the insolvent,, which she owned át the time she petitioned for the benefit of the act and filed her schedule, or whether they are only entitled to what was in. her possession, at the time when she swore out?.
    In-the 1st clause ofthe act, it is enacted, that if any person shall be sued, &c. and shall be minded to make k surrender of all his effects towards satisfaction ofthe debts; whetéwith he stands charged, or in which he shall be indebted to any person, lie shall within: a certain time after being taken into custody, exhibit his petition' with an account of his real and personal estáte, and upon such petition the court is required to' order the petitioner,-and the Creditors at whose suit he stands charged, and all other his creditors to be brought before them kt an appointed day; when unless successful opposition be made to the prisoner, are oath shall be administered to him that the account, or schedule, filed 'tvlth bis petition, contains a true account of ail his real and personal estate, debts, credits and so forth, which he possessed or was entitled to, when he swears off, or which he possessed or was entitled to, at-the time when he filed his petition- After taking this oath, the debtor executed an assignment of the lands, goods, and effects contained jn his schedule to assignees appointed by the court,; by which assignment the lands, goods and effects, “ so assigned,” are vested in the assignees, who may take possession or sue for them in their own names. Upon, executing this assignment, the prisoner is discharged, with a proviso, within, six month? afterwards, he deliver to the assignees all such effects contained in the schedule, as shall be in his power to deliver. In the 17th clause, it is enacted that if any insolvent, debtor,, at the timé when he shall .render an account of his estate, pursuant to the directions of the act, (i.,e. of his estate at the time when he filed his petition and schedule,shall conceal any debts owing to him, the assignees ‘ may recover such debts. By the 18th clause, if any person shall discover any property of the insolvent, “ subsisting at the time. of his swearing off,” not comprised in the schedule, he shall be allowed 50 per cent, of its nett produce, when sold by the assignees.
    None of these passages of the act can hear any other sense than that the debtor is compellable to assign all the property he had when he petitioned, and that this is one of the, conditions upon which he is discharged. All such property¿ therefore, becomes vested in the assignees, and consequently no part of it can be levied on or sold by any creditors subse-: quently to the time when the debtor filed his petition. It, may be urged that this interpretation interferes with the common law rights of the creditor; and if the meaning of the. statute were doubtful, this argument might be forcibly insist-, ed upon; but where the meaning is plain, the common daw must be regarded as repealed by necessary implication.
    
      2nd. In the first section it is said, that the assignment st shall be in trust for the suitor or suitors,” at whose suit the debtor stands charged, and such other of the creditors as shall be willing to receive a dividend; provided, they make their demands within twelve months, that the petitioner shall be forthwith discharged from the suit under which he was im- ' prisoned, and “ from and against all such others of his creditors, as shall have received their dividends, as aforesaid, for all debts, contracts and demands whatsoever.” In the 3rd. section, the assignees are requiredj first to discharge the said costs of suit and other costs and fees aforesaid, meaning the fees of the keeper of the jail, ,the costs of the suit or suits prosecuted against the debtor, under which he was imprisoned, and the costs incurred upon prosecuting and obtaining his discharge, (see the 1st section.) ¿ndly. To retain a compensation for executing the assignment; 3rdly, To divide the balance amongst such of the creditors, who deliver in their demands within the time aforesaid, according, and in proportion to their respective debts. • In the 4th, 5th, 6th and 7th sections, certain liens'are preserved upon certain conditions.
    But to decide this case, it is not necessary to advert to any of these sections, several passages of which are very ambiguously, if not unintelligibly, expressed./ By the act it is declared that the creditor of creditors by whom the debtor has been imprisoned, can have no further remedy .against him. And by our courts it has been solemnly decided that the same rule prevails as to all creditors, who have brought suits, whether they have obtained judgments or not.' All the creditors, therefore, who have brought suits against the debtor are forever debarred from any other redress' against him, than that which is afforded to them out of the assigned estate. This being the law, it would be paradoxical to compel'creditors to come in and take a dividend, if the amount in the hands of the assignees is not to be divided, but to be so appropriated that prior incumbrances may take tlie whole. The words of the act are general. The assignees are trustees, not only for the suing creditors, but for all the creditors who are willing to come in and receive their dividends. The only preferences given are to certain specific liens and certain costs and fees; and if it had been intended to give other preferences, it is to be presumed that they would have been mentioned. If certain preferences are preserved, the rational inference is, that no others were intended to be preserved. in the prison bonds act, it is declared that the property assigned shall be subject to all prior incumbrances; if the same had been the object of the insolvent debtors law, would it not also have been expressed? A statute ought to be so construed that no man who is innocent be endamaged. (3 Inst. 360.) Now if older judgments are to be paid before junior judgments, the legal remedies of the latter Would bfe impaired, by their being compelled to resort to an etchaustéd estate. And this consequence would'attach to them, though, they had been guilty of no fault; having done no more than pursue that course, for the recovery of their debts, which the law directed and sanctioned; and they would be subjected to this injurious necessity merely because they had brought actions. For those who had not sued, might refuse to resorttó the insolvent estate and might prosecute their rights against him at a future day. Where creditors suffer the same disa. bilities they ought to reap the same advantages.' The maxim, qui sentit commodum sentiré debet et onus, is as equitable . and legal a principle when stated in the converse,-qui sentit onus, sentire debet et commodum. By the bankrupt laws/the bankrupt is discharged from all debts due or owing at the time of the bankruptcy; and all debts (with certain exceptions which do not affect this question,) without any regard to their nature, come in equally for a dividend of the bankrupt’s assets. The reason is the same under the insolvent debtors law, so far as it relates to creditors compelled to discharge the debtor. The rule- ought, therefore, to be the same. And this reasoning is considerably strengthened, not only by the expressions in the law which I have already resorted to, but by the precise coincidence between its exprés» sions- in the, 3rd clause, “according and in proportion to their several and respective debts,” and those in the 33d Sec - tion of the bankrupt act, of the 5 th Geo. II. c. 30. of force when our insolvent debtors act was passed, and from which, it is probable, the words in our act were transcribed.
    Upon the whole, collecting the meaning of the insolvent, .debtors act, as well from its expressions, as from its apparent object and ii.tent, I am of opinion that all creditors (with the exception before mentioned) who are deprived of any future remedies against the debtor, are to be placed upon an equal footing; and as it has been decided, that all judgment creditors are compelled to release their demands against their debtor, they aré all to take the same dividend of his assets, without any regard to the order of their dates.
    Having arrived at the foregoing conclusions, upon the questions which have been presented, it is ordered that the monies in Mr. Kings’ possession be by him delivered to the assignees of Eliza Smith, to be by them distributed in the following nfanner:
    1st. To the payment of the gaolers fees and of the costs of the suits in the cases of Simon Mairs é¿ H. A. DeSaussure, and of the costs incurred in prosecluting and obtaining the debtors discharge;
    2nd. That they retain the usual compensation for their 'tr'oüble in executing the assignment; and
    3rd. Thatlhey dividethe balance, thereafter remaining, yateably and proportionably, among the suing creditors and all the other creditors, who, pursuant to the directions of the act, shall come in and declare their willingness to accept t£ dividend”
    From this decision, an appeal was carried up and as* gued the 24th and 25th February, 1825.
    
      King, for the motion
    Contended that under the law of this state, no such construction had been given, as that' taken by the Recorder. Any creditor might loose his lien. The Recorder was mistaken in being governed by tiie bankrupt law, instead of the English insolvent debtor’s law. Out act, refers to the insolvent law, (Pub. Laws, 247.) passed. 1729; and no such construction has ever been given to it in England. The common law rule of construction is the best. That-is, cotemporaneous exposition. Here the exposition has been 40 or 50 years, as he contended for it. And if the rule was otherwise, then executions lodged, for the purposes of obtaining priority over junior executions, vould loose their liens, and they would all come in pari' passu. Suppose the case of a judgment and subsequent mortgage. The statute does not take away the lien of mortgages; and by that means a mortgage may obtain a preference over a prior judgment. [Brown vs. Gilleland, 3 Eq. Rep. 539.1 Bay, 298.) The practice of a country should have weight in giving construction to acts.(l Pr. Williams, 223. 2 Str. 755. Burr. 1755.) Besides, the assignment is voluntary, gnd should not be allowed to divest prior lieqs.
    Choses in action, besides land and property out of the state, are not bound by judgments, fee. They may be so distributed. They may satisfy the language of the láw¿ The prison bounds act and this, may be construed, in some inspects pari materia. In that act all liens are retained. Judgment and other creditors, who do not choose to take dividends are not barred- (Sturgcs vs. Crowninshield, 4 Wh$at. 122. Stapleton vs. Mooreham, 6 T. R. 366. Tidd, 978,).
    
      Pepoon, contra
    cited Bingham on Judgments, 256, Cullen on Bank. 270. 157. 229. The design.of the law was to put the whole property iuto-one fund, to pay the creditors, as far as it will go, and to discharge the debtor. ( Cooper’s Bank. Law. 235.209. so 22. 63 89. 99.103. Cullen, 209.) By the act, the assignees are allowed to sue, fee,, as bankrupt assignees in England. (Public Laws, 75.) Lex- nimini facit injuriara-. If the act of the law discharges the debtor, his judgment is put into the same situation. (Bingham, 266./ The oldest execution has preference on account of diligence». The party who has taken a ca sa. seems still more diligent.. It is a question whether the tittle of the assignees vests by the assignment or by operation of law from the time of the petition. Cur act, giving the power given to assignees of bankruptcy, makes the bankrupt law, so far, in force. By the 7th section, unlessjudgment creditors come in, and show their judgments bona fide, money paid on them, vested in the assignees. By the 17th section, no debt paid to the insolvent, nor his release, after his account filed, is- a bar to suit of the assignee. As after an act of bankruptcy in England, the petition is "notice to all the world. (Cullen 229.) After act of bankruptcy he has no power over his effects. So far then, our act adopted the bankrupt law of England. Upon assignment made, the assignees may take possession, &c. and sue, fee. as the assignees of bankrupts. The 17 sec. shews they may sue by relation back, for debts paid before. If he do not render in all his property, he is not entitled to the benefit of the act. Why must the schedule be rendered at the., time of petition, if it be pot affected by it? If afterwards property is discovered, half goes to the assignees; which must be by relation to the petition and not to the assignment. ( Coop - or 82 ) This is in some respects a bankrupt law. As far as made obligatory to creditors to come in and take a dividend, it is a bankrupt law. If filing petition and schedule is to have any effect, it must be to divest debtors power over the property.
    If they have a lien and prior light, they must take through the hands of the assignees, Lien is not a right of property. The act requires parties to prove their judgment and mortgages.. These have not proved their judgments, and have lost their lien. It is a question in what manner shall debts be paid? . When this act was.passed bankrupt laws were in force. It was the received notion that judgment creditors had no priority. It was reasonable and just that all insolvent’s property should be divided amongst all his creditors. The assignees gire made trustees for all creditors who shall come in, &c and first they are to pay costs arid retain compensation, .and divide according to the amount of debts. Similar to the words made use of in the bankruptlaws. The act of Congress so provides. ( Coók 99.) The act of 2nd George divided according to amount of debts. All the property shall, make a common fund.
    The act does specify what liens shall be preserved. 'Mortgage was then a transfer of property with the right of possession, but is since made a mere security. Even pledges, before act of George 3rd, were transferred to assignees'.— Those who only give credit on the security of the property preserved their liens. Those, who give personal credit are not entitled to any preference. As to lien on subsequently acquired property,in Mayrantvs.Myers,2'Const. R. 419. thiscourt lias decided that all judgment creditors are forever barred, and their liens are not only divested but their debts satisfied.
    The suing creditor, is, in terms, made the object of the trust. It makes him pay the costs of suit, and the assignees repay him. Yet shall other judgments take all, and he who -is most diligent mulct? U hat becomes of the doctrine of lien, as to property discovered, and as to the amount necessary to pay costs? If the construction contended for be cor-.reci, simple contract creditors are in a better .situation, than judgment.creditors.. They are not bound to take dividend, nor are they bourid afterwards. The object of the act, is to prevent fraudulent judgments covering the property. They must come in and swear they were obtained bona fide. (Porieust vs. Sullivan, 1 M’C. 397.) Here the judgment looses its solemnity, and is proved by the oath of. the party and not by the record. If the party within three months, before application, prefers one creditor, (though on judgment) he is not entitled to the benefit of the act. Shall {he law give the preference, which it forbids the debtor to give? By the 19th section of the act, trustees are allowed to give the debtor 5 per cent, of his property5 which is similar to the statute of 
      George 2nd. If theprior judgment take all, he musí be deprived of this. It would be well for the community if these liens were put an end to.
    
      King, in reply
    By the common law the arrest of defendant on ca. sa. is an entire discharge of the debt.
    The act has so far altered the common law, in this respect, that if defendant is discharged under the insolvent laws, the plaintiff is entitled to come in pari passu, with other creditors, but his lien on the property in virtue of his judgment and fi.fa. is entirely gone; as to-this purpose, the judgment is satisfied. (4 Dali. 214. lb. 277.)
    
   Nott J.

The first question in this case is, whether judgment and'execution creditors shall retain the liens which they have acquired, on the property of an irisolvent debtor, at the time he applies for the benefit of the act, or whether-they are divested by such application, and are required to come in on a footing with other creditors and receive a dividend in proportion to. their respective demands?

If this were a new question, perhaps it might have Been entitled to the consideration which has been bestowed-upon it: But the act has befen in operation for upwards of sixty years; and, as far as we have been able to obtain information respecting the construction, which has hitherto been given to it, we are induced to believe that it has been favorable to the lien creditors: And a uniform practice for such a length oí time ought to be conclusive of the question. It furnishes the highest evidence that we can now have of the early decisions of our courts upon the subject, and is entitled to all the respect which would be due to the most solemn decision of this court; and I do not know but we should have fulfilled our duty as well by resting the case upon that ground alone, as by attempting now to justify that construction of the act.

I am, nevertheless, of opinion that it can very well be maintained.

It must be admitted, that if the insolvent debtors’ act had never been passed, a debtor could not by assigning his property have defeated any prior liens; and it is hot perceived that the act contains any provision, by which the relative situation of debtor and creditor is at all changed, in that res ! pect. The act has'prescribed no method by which a creditor can compel his debtor to surrender his property for the payment of his debts; neither does it enjoin it upon the debtor as a duty to do so. The ássignmenl is a voluntary act of the party and not an act of the law; and he cannot by his own act relierve his property from pre-existing liens. Arresting the body on a ca. sa. is equally voluntary on the part of the creditor; it is not a process allowed by the act for the purpose of effecting a surrender of the property; neither is -a surrender the necessary result. A creditor would have been entitled to a ca. sa. if the act had never .been passed, and the debtor might have assigned his estate for the payment of his debts. But such an assignment could not have affected the rights of others, neither is there any thing in the act to . give it that effect now. The object of the law is to relieve thé debtor from perpetual imprisonment. It, therefore, provides hat when he shall have surrendered all he has to his creditors, he shall be discharged, as well from his debts as from.itn-prisonment: But it does not deprive the creditors of any security which they had before obtained.

. It is contended that by the act, the debtor is required, to assign aU his property, and that the property so assigned^ shall he vested in the assignees, for the benefit of all the cred* itors; from whence the conclusion is drawn, that as all his property becomes vested in the assignees, there can be none upon which the judgments'and -executions can operate.

But I must here again repeat that the act does not require him to assign his property. It- only provides, that if he choose to do so, he shall assign the whole and not a part. The assignees can acquire no better right than the assignor possessed himself. The rights of the debtor are transferred to the assignee's, and nothing more.

It is also further contended, that the act declares that the assignees “may take possession of the property, so assigned, or sue for the same in their own names, in the same manner as commissioners of bankruptcy can or lawfully may do by the laws or statutes of Great Britain,” it was intended to adopt all the provisions of those statutes. The same inference is also drawn from the fact, that some of the clauses of out act, appear .to have been copied from the British' bankrupt laws.

But introducing a specific provision from those statutes will not authorize the conclusion that the statutes themselves were intended to be made, of force. Neither can we infer, from the adoption of a single clause, an intention to give operation here to the whole system of British bankrupt laws. It would rather lead to a contrary conclusion, Upon the well known legal maxim, that the express adoption of a specific provision of an act amounts to a virtual exclusion of all the rest, — expressio unius, exclusio alterius. The reference of the act, to the bankrupt laws of Great Britain, relates specifically to the power of the assignees to take the property or to maintain actions for the recovery of the same, and to that only. This construction also best comports with the gqod faith of the legislature. A creditor when he has obtained 8 judgment, is aware of the hold he has upon the property of his debtor. He rests confidently .upon the security he has acquired; and we ought not to indulge the belief that the legislature intended to destroy the security which the law thus afforded to judgment creditors, in favour of subsequent creditors, without the most unequivocal expression ofsucb intention. But no expression is found in the act: .The fair deduction, therefore, is, that all pre-existing rights and obligations remain unimpaired. The assignees are substituted in the place of the debtor with all his rights and privileges, and take the property subject to all the incumbrances, liens, defect of title, &c. to which it was subject in his hands. Any person may assign his property, notwitstanding judgments, executions and mortgages may be hanging over it, But the assignee must take it subject to those claims. He may redeem it from the incumbrances, and his title is good. It cannot be effected by intervening judgments. Such is. the extent of the right which the assignees,'in this case, have acquired. The decision of the Recorder on this point, is, therefore, reversed.

Another question has been .raised in the course of the argument.^ That is, whether the party who has taken the body of the defendant on a ca. sa. has thereby lost the lien which he before had on the property?

Before the statute 21s/. James, I. c. 24. taking‘‘the body in execution was considered as a satisfaction of the debt. If, therefore, the- defendant died in gaol, the debt was lost. By that statute, it was provided that thé-plaintiff might still have nfi.fa. against the goods of his deceased debtor. The statute itself, however, preserves the rights acquired by intermediate transfers. And, if it had contained no such provision, it is not improbable that such would have been its-construction. - ’ So where a person is discharged by privilege of parliament, a statute was necessary to subject his goods to the] operation of an execution afterwards, (2 Bacon, p. 7lB. title Execution,) viz: 1st James, I. c. 13. If the defendant in this case/lfad not taken the benefit of the'act, the plaintiff certainly would have lost his lien on her property. He did not resort to the ca. sa. for the purpose of compelling her to surrender her estate; but to coerce the payment of his money. .He voluntarily let go the hold that he had upon her property for what he considered better security. He made his election, and could not by. any act of his own, divest the liens, which others acquired in the mean time. The act makes no such provision. It preserves the debt but not the lien. A contrary construction would be attended with the most mischievous consequences. It would be setting a suaré, in which the most honest, bona fide, purchasers might he caught, to give to a judgment such a retrospective operation. The court, therefore, are of opinion that the lien which the plain-íifl'lostby tájúng the body of the defendant was not restored by her discharge from imprisonment. The judgments and executions must first be paid in their'regular order out of the proceeds óf the property, on which they had a -lien, previous to theassignment. If the'defendant'had atíy funds on which the lien creditors have no hold, or if there are any after those are satisfied, they must be distributed among the creditors according to the provisions of the act..

Messrs. -Kingr Frost, ford and DeSaussure, for Appellants.

Mr. Pejjooti, for Appellee.  