
    Bailey Bartlet, Sheriff, &c., versus James Prince, Marshal,. &c., and Sprague, his Deputy.
    By the insolvency of debtors of the United States, as used in the statutes, is intended some overt and notorious act, which the laws of the state recognize as an insolvency.
    
      Trover for sundiy goods, wares, and merchandise. Upon the general issue of not guilty pleaded and joined, a trial being had before Sewall, J., at the sittings here after the last November term, the defendants filed their bill of exceptions, at common law, to the opinion and direction of the judge who sat in the trial.
    From the bill of exceptions, it appears that the plaintiff, to maintain the issue on his part, proved that the chattels mentioned in the declaration were, on the 4th of June, 1810, the property of T. Wellman and B. Ropes; that, on that day, sundry writs of attachment, directed to the sheriff of the county of Essex or his deputy, issued against' said Wellman Sf Ropes, by virtue whereof the said chattels were, on that day, attached by one I). Dutch, a deputy of the plaintiff, then and now sheriff of the said county of Essex, according to the laws of this commonwealth, for the sole and exclusive benefit of the several creditors suing such writs; that said writs of attachment respectively, excepting two which are yet pending in Court, were duly prosecuted, and final judgment rendered thereon, in favor of the several creditors suing the same, at the S. J. Court, November term, 1810, for sums of money exceeding in the whole the value of the chattels aforesaid; and executions issued on * the same judgments within thirty days after the rendition thereof, and the said executions remain unsatisfied.
    The said defendants, to maintain the issue on their part, proved that on the 18th day of September, 1810, two several executions, in favor of the United States, one against said Wellman and one against said Ropes, each for the sum of 5176 dollars principal, 77 dollars 43 cents as interest, and 13 dollars 95 cents costs, were issued from the District Court, &c., directed to the marshal of said district or his deputy; which executions issued on certain judgments recovered against said Wellman Sf Ropes, at the District Court held at Salem on the second Tuesday of September, 1810, on a joint and several bond given by said Wellman Sf Ropes at the custom-house, for duties, for 5176 dollars, which bond was dated on the 15th day of March, 1810, and payable on the 15th day of June in the same year; that the actions, in which the said judgments in favor of the United States were rendered as aforesaid, were first commenced on the-day of August, 1810; but that no attachment of property was made thereon ; that on the 19th day of September, 1810, two certain writs of attachment in favor of the Un'ted States, one against said Wellman and one against said Ropes, issued in due form of law, directed to the marshal of said district or his deputy, returnable to the said District Court on the first Tuesday of December, 1810, which writs were upon a joint and several bond, given by said Ropes Sf Wellman at the customhouse for duties, for another sum of 5176 dollars, which bond was dated on the 15th day of March, 1810, and was payable on the 15th day of September, 1810; that on the 11th day of October, 1810, the same chattels, being in the custody and possession of the plaintiff under the attachments made by him as aforesaid, in a certain store by him hired for that purpose at Salem aforesaid, the said Sprague, then being a deputy under the said Prince, then and yet marshal of the United States for said district, by virtue of the executions and attachments aforesaid, demanded of the * plaintiff to have the said store opened, in order that said Sprague might seize and take the chattels aforesaid, on said writs of execution and attachment, in behalf of the United States; that upon the refusal of the plaintiff, said Sprague forcibly broke into the store aforesaid, and, by virtue of said writs of execution and attachment in favor of the United States, seized, attached, and conveyed away, the said chattels; and afterwards, on the 15th day of the same October, by virtue of said executions, in due form of law, sold so much thereof as was necessary to satisfy a moiety of each of the said executions, and the residue the said Sprague returned as attached upon the writs of attachment aforesaid in favor of the United States ; that the said writs of attachment were duly prosecuted, and final judgments were rendered in the suits thereby commenced, in favor of the United. States, at the said term of the District Court on the first Tuesday of December; and the said chattels, so attached thereon, were duly sold by virtue of writs of execution issued upon said last-mentioned judgments, and the proceeds thereof applied toward the satisfaction of the same; that after the 4th day of June, 1810, and before the 18th day of September, in the same year, sundry trustee writs or processes, according to the statutes of the commonwealth of Massachusetts, other than the writs of attachment first mentioned, by which said chattels were attached by the plaintiff, were sued in due form of law by divers other creditors of the said Wellman egílopes, (which writs and processes were for the sole and exclusive benefit of the several creditors suing the same, and not for "the ben efit of any other creditor of said Wellman 8f Ropes,) and sundry persons therein named as trustees, and were directed to the sheriff of the said county of Essex or his deputy, commanding them to attach the estate of the said Wellman Ropes to a much greater value than the said chattels; which processes were duly served upon the trustees, and are still pending in the Court of Common Pleas for said county of Essex; and the property attached upon said * processes is greatly insufficient to pay the demands declared upon; that said Wellman fy Hopes continued in business until the said attachments made on the said 4th day of June, and then failed in business, and then were, and ever since have continued to be, debtors unable to pay their debts; that said Wellman has continued at his usual place of abode in said Salem ever since his failure as aforesaid, 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 body, for two or three weeks next following the said 4th day of June ; but has never been arrested by any officer, or pursued by any officer for that purpose ; and that said Ropes has always continued abroad in Salem, and has never confined or concealed himself from his creditors at any time. '
    Whereupon the counsel for the defendants did insist, on behalf of the defendants, that the several matters, so produced and proved in evidence on their part as aforesaid, were sufficient, and ought to have been allowed and admitted to prove and maintain the issue on their part, and to bar the plaintiff of his action aforesaid.
    But the counsel for the plaintiff insisted that the matters and evidence aforesaid, so produced and proved on the part of the defendants as aforesaid, were not sufficient, &c.
    The judge who sat in the trial delivered his opinion to the jury aforesaid, that the said several matters, so produced and proved on the part of the defendants, were not, upon the whole case, sufficient to maintain the issue aforesaid on the part of the defendants, and to bar the plaintiff of his action aforesaid thereof against them ; and with that direction left the same to the jury, who gave a verdict for the plaintiff, and-dollars damages.
    Whereupon the defendants excepted, &c., and prayed the judge to allow and sign the said exceptions; who, finding the same conformable to the truth, allowed, signed, and sealed, the same accordingly.
    * Putnam, for the defendants,
    relied on the 65th section of the statute of the United. States passed March 2,1799, for regulating the collection of duties on imports and tonnage, by which it i-s enacted that, in all cases of insolvency, debts due to the United States, on any bond for the payment of duties, shall be first satisfied.  A similar provision was made in the first collection law, section 45.  In the first-cited section, the cases of insolvency are declared to extend to all cases in which the estate and effects of an absconding, concealed, or absent debtor, shall have been attached by process of law. The same provision is also extended to all debtors of the United States, by statute passed March 3, 1797.  The manifest intention of the Congress, expressed in these and other provisions of the like kind, to secure debts due to the United States, claims for them the broadest and most efficient construction.
    The debtors in the case at bar were clearly insolvent, if not in any technical sense, yet in the popular and universally received sense of the word. An insolvent person is defined by Johnson, and other English lexicographers, to be one unable to pay. So the case finds Wellman f Ropes to have been.
    In the case of Watson & Al. vs. Todd & Al., 
       decided in this Court, the Chief Justice,, alluding to a case like the one at bar, says, “If the sheriff first attached, then the marshal, in consequence of the priority given by law to the United States, might seize them in his possession, take them from him, and entirely defeat and render void the attachment.”
    So, in the case of Greenough vs. Walker & Al.: 
       “ By a statute of the United States, if the United States, or the surety, having paid the bonds, had afterwards attached the same goods and chattels,” which had been before attached by the sheriff at Richardson’s suit, “ before they were sold on Richardson’s execution, his prior lien would be defeated to the amount of the bonds.”
    
      Prescott and Story were to have argued for the plaintiff.
    
      
      
        US. Laws, vol. iv. p. 386.
    
    
      
      
        Ibid. vol. i. p. 221
    
    
      
      
        U. S. Laws, vol. iii. p. 423.
    
    
      
       5 Mass. Rep. 275.
    
    
      
      
        Ibid. 214.
    
   * But the Court stopped them, saying they were all agreed that the plaintiff was entitled to judgment on the verdict. The Chief' Justice observed that he had always conceived that by insolvency, in the acts of Congress, was to be understood some overt and notorious act, which the laws of the state recognize as an insolvency,

Judgment on the verdict. 
      
      
        {a) [Prince vs. Bartlet, S. C. in Error, 8 Cranch, 431.— United States vs. Hooe, 3 Cranch, 91. — M'Lean vs. Rankin, 3 Johns. Rep. 370.— Watkins vs. Otis, 2 Pick. 88. — Canard vs. The Atlantic Ins. Co., 1 Peters's R. S. C. 438.— Thellusson vs. Smith, 3 Wheat. 396. — Farmers Mechanics Bank. vs. Smith, 6 Wheat. 131. — Ed.]
     