APPEAL from the Circuit Court of Massachusetts.
This was a bill in equity, filed in the name of the United States, in the court below, stating, that several judgments had been obtained by the United States on duty bonds, against Shoemaker & Travers, and Jacob Shoemaker, and their sure, ties, amounting to the sum of $5292; which judgments were obtained in the district court of Pennsylvania, at the February term of 1808, and upon which executions had issued, which remained in the marshal's hands unsatisfied; that after the execution of the duty bonds, but before they were payable, to wit, on the 6th of December 1806, Shoemaker & Travers became insolvent, within the true intent and meaning of the act 'to regulate the collection of duties on imports and tonnage:' that on the first of February 1808, goods, effects, money and credits of Shoemaker & Travers, to the amount of $6000, had come to the hands of Howland & Allen, which, the bill alleged, they refused to subject to the executions of the United States; it prayed, that they might be compelled to account for, and deliver up, these goods, &c., in satisfaction of the claim of the United States, and for an injunction in the meantime to restrain them from disposing of, paying away, or in any manner applying the goods, &c., aforesaid, to any other object. The injunction was, accordingly, awarded.
An amendment to the bill stated, that after the debts to the United States accrued by bond as aforesaid, and after Shoemaker & Travers had become insolvent, to wit, on the 6th day of December 1806, they made a voluntary assignment by deed, of all their property, for the bedefit of their creditors, within the true intent and meaning of the act of congress aforesaid, and an exemplified copy of the deed of assignment was annexed to the amended bill. The deed recited, that the parties being justly indebted to divers persons, whose names are mentioned in a list thereto annexed, and unable at present to pay the said debts, they assign to trustees therein mentioned, all and singular, the estate and effects contained in a schedule annexed, in trust, to pay the debts due the enumerated creditors, and first, that due to the United States. The schedule was entitled 'Schedule of property assigned by Shoemaker & Travers, and Jacob Shoemaker, to the creditors of Shoemaker & Travers,' and contained many items of property, and among others, the proceeds of the cargo of the brig Deborah, which vessel was then at sea, and belonging to Howland & Allen, but had been chartered by Shoemaker & Travers.
Howland & Allen, by their answer, admitted the receipt, on the 1st of January 1807, of 4000 Spanish dollars, the property of Shoemaker & Travers, and which the master of the Deborah had received in Guadaloupe, for Shoemaker & Travers; but insisted on their right to apply it to an unliquidated debt of greater amount (composed of freight, demurrage, damages, &c., the particulars of which were detailed by the answer), due, as alleged, from Shoemaker & Travers to them, and applied, by an entry in their books, to the credit of Shoemaker & Travers, at the time of the receipt of the money aforesaid. They insisted, therefore, on the right of retaining it. To this answer, there was a general replication, and the depositions of several witnesses were taken.
The court below decreed, that the said Shoemaker & Travers were, and are, indebted to the United States, and that they became insolvent, and made an assignment as alleged in the bill, and that there was an outstanding unsettled demand existing in their favor, at the time of their insolvency, against the defendants, arising from the voyage of the brigantine Deborah, and which is still unsettled and unpaid, but the court is not satisfied that the defendants, being merely debtors to said insolvents, are by law liable to this process, and thereupon, decree, that the said bill be dismissed. From this decree, the present appeal was taken.
February 4th.