This case comes before the court upon an agreed statement of facts; and the object is to ascertain, whether, as the estate of Abiel Wood is insolvent. the United States have a right to priority of satisfaction out of his assets, for the judgment debt of the plaintiffs (Abraham P. Howe and another), which was obtained against Wood, and assigned by the plaintiffs to the United States, in the lifetime of Wood. The question, intended to be raised, is not, whether in this form of action (a suit at law on the judgment, brought in the name of the judgment creditors for the benefit of the United States), the priority of the United States can be insisted on. If that were the point, we should have no hesitation in saying it could not; for nothing in the suit can judicially be taken notice of, which shall distinguish the case of the plaintiffs from that of other private judgment creditors, as to rights or remedies. But the real question is, whether in any form of suit, at law or in equity, the United States can, upon such a debt, so assigned to them, insist upon the statute priority.
I am by no means satisfied that this is not a case, where at law, the government might sue the debtor directly upon the assigned judgment in their own name. For at the common law, though choses in action are not assignable, yet in the case of the king, there is an exception; for upon an assignment of a chose in action to the king, he is allowed to sue the debtor in his own name. This is not so much a matter of prerogative, as an exception coeval with the rule, as to the non-assignability of choses in action. So the doctrine is laid down in Miles v. Williams, 1 P. Wms. 252, which cites 21 Hen. VH.„- 19. Lord Chief Baron Comyns lays down the same doctrine in the clearest terms. 2 And I have a strong impression, that the same doctrine has been recognized, incidentally, by the supreme court of the United States.
But this point is not important to be determined in the present case; because it is clear, that the assignment of the judgment did in equity transfer the debt to the United States; and the government might, by a bill in equity, have enforced the judgment against the debtor. The question, then, comes to this, whether the statute of 1797, c. 74 [supra], giving priority to the government in the payment of debts, applies to legal debts only, or to debts both legal and equitable. The fifth section of that statute declares “that where any revenue officer or other person becoming indebted to the United States, by bond or otherwise, shall become insolvent, or where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied,” etc. Now, in this language, there is not the slightest distinction made between equitable and legal debts. If an equitable debt is due to the United States, is it to be -wholly excluded from any payment out of the assets? If such debt is payable out of the assets, what is the order of payment? Is it to be postponed to other legal creditors; or paid pari passu with them? The statute is silent as to any marshalling of assets, except in cases of priority; and it *675gives that priority in all cases of debts. The words of the statute seem to extend to all cases of debts due to the United States from an insolvent debtor’s estate; and if payable at all out of his assets, the rule of priority seems co-extensive with the duty of the executor or administrator to pay.
[See Case No. 6,773.]By laws of Maine (and Massachusetts has the same rule), there is no difference in the dignity of debts. All are equally payable out of the assets, pari passu. And in regard to private creditors, no distinction is taken between equitable and legal debts, any more than between legal and equitable assets. I know of no ground, upon which equitable debts are, or can be excluded from a proportionate dividend of the assets, when such debts are due to private creditors. How, then, can a different rule be applied to equitable debts due to the United States? In the sense of the laws of Maine, and in the sense of the laws of the United States,'they ¡are still debts. Suppose an estate solvent as to the payment of legal debts, but not as to the payment of equitable debts also, can it be treated as other than an insolvent estate? And, if insolvent, are not the United States necessarily entitled to a priority as to all their debts by the very terms of the statute?
After reflecting much upon the subject, I ¿un unable to arrive at any other conclusion, than that the priority of the United States Attaches to all debts, equitable, as well as legal. Upon any other construction, I cannot perceive, how they are entitled to any •payment whatsoever, out of the assets for 'equitable debts. If they are not debts against the estate in cases of insolvency, neither can they be deemed such in cases of solvent estates, a conclusion which would overturn the best established principles. The district judge concurs in the opinions, which I have thus expressed. The case has been exceedingly well argued, and with great ingenuity. But, after all, it comes back to the simple •question already stated. According to the agreement of the parties, the cause will :Stand continued, in order to enable the administrator to perfect his application for relief to congress.
See, also, Com. Dig. “Assignment,” D.