implying an insufficiency of property to pay one’s debts, was the only sense, which the words would bear, and which would fully attain the object in •view.

They further contended, that by the act of insolveftcy, granted by the General Assembly, in October, 1802, the estate and credits of Gates passed to his assignees ; and that the United States were, of course, entitled to a priority.

Neither the service of the foreign attachment, nor the judgment against the absconding debtor, nor the demand upon the garnishee, and return of the officer, changed the nature of the debt, or the interest of the parties in it. The whole process against the garnishee is but a remedy to reach the assets of the absconding debtor ; and until the property is actually taken, after a judgment on the scire-facias, it may be arrested by any proceeding, either under an act of bankruptcy, or insolvency. Such is the case in the settlement of insolvent estates under our laws. Though judgment passes against the administrator, and execution is returned non est, and a scire-facias is brought ; yet if the estate is afterwards represented insolvent, the proceeding is arrested, and the creditor must put up with his dividend.

The facts found by this special verdict fully warrant the judgment given by the Superior Court, unless the transactions between Smith and the United States, place him in a more favourable situation than other creditors. Tinker has proceeded according to the requirements of' the statute relating to absent and absconding debtors. Smith must respond to him for the debt paid the United States, unless a priority can be made out in their favour on the case as stated.

The points made, therefore, by the assignment of errors, are resolvable into this, -viz. Had the United States a lien upon Jonah Gates’ land, so that the debt due to them must be first paid ?

This question must be answered by the true construction of the several acts of Congress on this subject. These acts are found in the first volume of the Laws of the United States, page 221,—2d vol. 79,—3d vol. 423,—and 4th vol. 386. They are not variant from each other ; and the operative part of them on this question is contained in the 65th section of the Act entitled “ An act to regulate the collec- “ tion of duties on imports and tonnage,” in pages 386 and 387, of the 4th volume.

In the case before us, there has been no voluntary assign-⅜ ment for the benefit of creditors -there has been no “ act of “ legal bankruptcy —but it is urged, that there was in-solvéncy, and an attachment of the estate and effects of an absent debtor, &c.

1. Gates was indeed insolvent ;—that is, he was unable to pay all his debts but the statutes of the United States did not intend to give priority in all such cases. The word “ insolvency” here means not only inability to pay, but some act by which that inability is rendered notorious, and unequivocal, In the former part of the section of the act alluded to, provision is made for priority in favour of the United States in cases of insolvency, where the estate is in the hands of administrators or executors. The word “ as- “ signees” is used, and persons are said to be “ acting” for estates.—By these expressions the above construction is supported. Indeed,the intent of the legislature undoubtedly was, that in case of any voluntary or compulsory distribu-tlon of the estate of any debtor of the United States, which estate was insufficient to pay all the debts due, the government should be preferred. This principle is adopted in England, and in many, if not all, the states in the Union* and is sanctioned by universal consent.

2. But there has been, it is urged, an attachment, by process of law, of the estate and effects of an “ absent, con-concealed, or absconding debtor.” The case, therefore, is within the words of the statute.

It is believed, that those words were used with reference to general provisions of law regarding absent and abscond~ ing debtora~-such as the~tatute of the State of New-York, by which, by p~~0cess of foreign attachment, all the estate of the absent debtor is secured for the benefit of all his creditors. (e) Understanding the language of the statute of the United States in this manner, the provision seems wise and just, and in accordance with the other parts of the act. Thit, the statute of this State, which regulates the proceedings in this case, rests on different principle~. By our laws, any individual may attach the property of his debtor for his exclusive benefit ; but as estate, effects, and debts may be concealed, by absent and absconding debtors, in the hands of their friends, the provision would be incomplete without the law on which this suit is brought. Thus the defect of the other law is supplied. Still, however, the attachment is solely for the benefit of the individual credltor~

The construction contended for, by the plaintiff in error, Will give the priority to the United States, whenever it can be made out on trial, that there was an inability to pay. To say nothing of the embarrassments thrown on transfers of property, by creating liens upon such uncertain grounds, or of the conflict produced between the United States and individual creditors, if that construction be sound, I contend, that it.is not within the words of the act. « The estate and “ effects” must be attached ;—but is the attachment of property of the value of ten dollars, or of a debt to that amount,' an “ attachment of the estate and effects ?” Ought a general distribution of a debtor’s estate to take place on the happening of such an event ?