[Bank of the United States us. Weisiger.]

before he would have taken the oath, and received a discharge under the act of Congress.

The correctness of the decision below upon this point must be tested by considerations drawn from the object of the imprisonment; the influence of the discharge upon the loss of the debt; and from adjudged cases. We are inclined to think, that it has been rather too hastily conceded, that no case similar to the present has been adjudicated. That it adds another to the long list of instances of laches which have been held to be fatal to the recovery of the assignee against his assignor in that country, cannot be doubted.

This case, it must be recollected, comes within the fifth section of the act of January 6th, 1800, entitled "An act for the relief of persons imprisoned for debt." The second, third, and fourth sections of that act make provision for the discharge of persons confined under execution, and the fifth section extends "the privileges and relief" of that act, to persons in confinement, against whom judgment is obtained but no execution issued. Under the provisions in favour of persons charged in execution, on the day of arrest, a notice may be served upon the person at whose suit they are confined, and at the end of thirty days they may be discharged. By the fifth section it is enacted, "that any person imprisoned upon process issuing from any Court of the United States, except at the suit of the United States, in any civil action, against whom judgment has been or shall be recovered, shall be entitled to the privileges and relief provided by this act, after the expiration of thirty days from the time such judgment has been or shall be recovered, though the creditor should not, within that time, sue out *351] his execution and charge the debtor therewith." It has been argued, that under this section the defendant must remain in prison thirty days after judgment before he can sue out his notice to the plaintiff, thus requiring him to remain sixty days in confinement, in the cases which come under this section; whereas he remains but thirty days when confined under execution.

There can be no reason for the distinction, and we think that in favour of liberty and with a view to consistency, the construction should be otherwise. If such were the true construction, the relief would not be the same as is extended to the debtors of the other class. We think, therefore, that the day of entering judgment under the fifth section, is the day that corresponds to the day of arrest under the previous provisions of the law; and, therefore, that in thirty days after judgment, he may be discharged by complying with the other requisitions of the law. The day of entering the judgment appears nowhere in this record, but as the notice was served on the plaintiff's agent on the 14th of December, we must presume that the judgment had then been entered; and on the same day the agent signed that consent to dispense with "the previous imprisonment by law to entitle the defendant to take the oath of an insolvent debtor," by which, it is now insisted, that the complainants are barred of their right to recover of the assignor.

[Bank of the United States vs. Weisiger.]

The error of the Court below obviously consists in this, that it considers the imprisonment to which the defendant is subjected, as among the means of coercing payment. The arrest certainly is so; but the thirty days' confinement that ensues, is only incidental to the notice required to be given to the plaintiff of the defendant's intention to claim his discharge as an insolvent. Now he must be insolvent when this notice is given, and what, is to be forced from an insolvent man by the thirty days' imprisonment? It is obvious that the confinement is not regarded as the means of coercion, but only as a time necessary to the investigation of the defendant's circumstances, or the collection of evidence *to repel his insolvency. [*352

The coercive means of the law are to be found in the searching oath to be administered, and in the fear of prosecution for perjury, and recommitment in the same actions.

If, then, this imprisonment has no other object than to make the debtor await the investigations of his creditor, it is difficult to assign a reason why the creditor may not dispense with it, when satisfied that the application is an honest one, and that delay would discover nothing that he was not already acquainted with. In the language of the Kentucky Court, it would be "worse than idle" to detain him. Nothing but unavailing hardship upon him, and ultimate expense to his endorser, could result from it."

Nor do we think ourselves unsupported by the Kentucky decision in this view of the subject.

In the case of Young vs. Cosby, the drawer of the note being in custody under a ca. sa. issued by the assignee, was discharged for want of security for the payment of prison fees. This discharge, it was contended, was imputable to the assignee and barred his recovery against the assignor; unless he could prove that the drawer had nothing which might have been wrung from him by a protracted imprisonment. But the Court of appeals decided otherwise; and established, that if the assignor had sustained any injury in that respect, it was incumbent upon him to prove it. The language of Chief Justice Boyle, on that occasion, was this: "It has repeatedly been decided in this Court, that to entitle the assignee of a bond or note to recover of the assignor, it was necessary to show that he had used due diligence by suit, to recover the amount from the payor or obligor; but it has never been required of him to prosecute the suit against the payor or obligor, farther than a man of ordinary prudence and diligence would do, in a case where he was solely and exclusively interested. To make it necessary to do so, would be unreasonable and unjust; inasmuch as it would tend to accumulate costs without the prospect of any probable advantage to either of the parties.""

We entirely approve of the opinions here expressed: they are conceived in the reason and benignity of the law, and we

are unwilling to extend the diligence required of the assignee [*353

beyond the limits there laid down.

In the case of Oldham vs. Bengan, the doctrine laid down in

[Bank of the United States vs. Weisiger.]

Young vs. Cosby is considered and affirmed, and Chief Justice Bibb observes, "that although due diligence has always been required in such cases, yet in no case has all possible diligence been exacted."

And both these cases concur to establish this principle, that it is not on the ground of a mere possible injury that the assignor can claim his discharge; much less where it is improbable, as Judge Rowan remarks in the case of Stapp vs. Anderson, before cited. The present case presents the drawer in a situation in which it is not only improbable, but scarcely possible, that the assignor could have sustained an injury. For a discharge under the insolvent law of the United States is confined in its effects altogether to the particular case, and even as to that, does not exempt the debtor's present effects, or future acquisitions, from the, process of the law; nor is his person exempt from confinement for the same debt, should he be detected in a fraud upon the creditor. The bare speculative idea, then, of a possible acquisition of property within the thirty days, during which Voorhees might have been compelled to await the will or inquiries of his creditor, and of property not tangible by the process of the law; is too feeble a consideration to affect the rights of the complainant.

The decree below will be reversed, and a decree entered here that the complainant recover his demand.

268

*WILLIAM CAMPBELL'S EXECUTORS, APPELLANT, US. PRATT, FRANCIS, AND OTHERS, APPELLEES.

The Court refused to reverse the decree of the Circuit Court of the county of Washington, although an error had been committed in proceeding under the mandate from this Court; as no benefit would result to the appellant from a reversal.

APPEAL from the Circuit Court of Washington county.

The matters in controversy in this case arose out of proceedings in the Circuit Court, under the mandate of this Court issued at February term, 1815, in the case of Pratt and others vs. Campbell and others, reported 9 Cranch, 456.

In the Circuit Court, the appellants in this case filed their bill, alleging that they had been injured by the proceedings under the mandate, 9 Cranch, 58, and that the Court gave a decree against their claims, as set forth in the bill. From this decree they appealed.

The counsel for the appellants contended, that by the decree passed by the Circuit Court in the original. cause, the appellants had sustained injury in the following particulars.

1. Of the thirty-six squares mortgaged to Law, thirty-two were attached and purchased by the appellant, and four squares therefore remained affected only by Law's mortgage.

Campbell was permitted to redeem his thirty-two, by paying their proportion of the whole of Law's debt; thereby making the four remaining squares bear also their proportion of Law's debt.

Admitting this to be right, it should have been decreed, upon the same principle, that if the parties did not redeem, the sale should be made so as to produce the same result; that is, the four squares not purchased by the appellant should have been sold first, and his thirty-two squares should only have been sold to make up the deficiency of Law's debt.

The Court below put on these four squares only the sum of two thousand eight hundred and six dollars, and twenty-nine cents, (much less than their proportion,) and decreed *them to be sold last; thereby saving them to Pratt and others, if the [*355 other squares produced enough to pay Law, and thus giving them a preference over the appellant, denied by this Court in the original

cause.

2. Of the eighteen squares mortgaged to Duncanson, thirteen only were attached and purchased by the appellant; consequently five remained; and these five the appellant contends, on the same principle, should have been sold first, and the appellant's thirteen only resorted to, to make good the deficiency under that mortgage.

It was contended that these errors can be corrected, by this Court's ordering that such of the said squares as have not been sold, shall be

[Campbell's Executors vs. Pratt et al.]

sold for the benefit of the appellant, and that the money received for such as have been sold, shall be decreed to him, or the sales re scinded.

3. The Court below also erred in requiring the appellant to re deem from both mortgages, and decreeing that in case he did not redeem from both, the squares should be sold to satisfy both.

The case was submitted to the Court on the written arguments of counsel. Mr. Swann and Mr. Key for the appellants; Mr. Jones for the appellees.

Mr. Justice JOHNSON delivered the opinion of the Court.

This cause has its origin in the great case of Pratt, Francis et al., which appeared in this Court some years ago with the formidable bulk of nine hundred folios! The rights of the parties had become exceedingly perplexed in the progress of large and multifarious transactions, originating in the speculations of Morris, Nicholson, & Greenleaf, in the land of this city. Thomas Law held a mortgage of thirty-six squares from Morris, Nicholson, & Greenleaf, and fourteen of the same squares were mortgaged by them to one Duncan、 son. Campbell acquired the equity of redemption of Morris, Nicholson, & Greenleaf, in thirty-two of the thirty-six squares, the four others not being included in Duncanson's mortgage. The equity of redemption in these four squares has passed by assignment to present appellees, in right of Morris, Nicholson, & Greenleaf. Thirteen of the *squares included in Duncanson's mortgage were *356] among the thirty-two in which Campbell had possessed himself of Morris, Nicholson, & Greenleaf's equity of redemption, and his constant efforts have been to reduce the sum due on Law's mortgage, to put aside that of Duncanson, as a satisfied incumbrance, and to obtain a precedence to Morris, Nicholson, & Greenleaf's equity, in the four remaining squares.

This Court established the principles on which the sum to be raised to satisfy Law's mortgage should be ascertained; decided against any precedence in Campbell, as a joint holder of the equity of redemption; and sustained Duncanson's mortgage, in favour of a prior equity which Greenleaf held in it. So that, in effect, the cause went down to the Circuit Court for the sole purpose of having a sale of the squares effected; the proceeds applied, first to pay off Law's mortgage, then Greenleaf's interest in Duncanson's mortgage, and the balance only, if any, to go to the equity of redemption. Substantially, this has not been done; for we now find the two squares, which form the subject of the present controversy, in the hands of Pratt et al., the appellees, which could only be in the right of Morris, Nicholson & Greenleaf's equity of redemption; whereas Duncanson's mortgage, to a large amount, remains unsatisfied, and Campbell, with eight-ninths of the equity of redemption in him, has received nothing.

If then the appellees should be confirmed in the possession of those squares, it is obvious that Campbell would have much to