both realty and personalty on which they are imposed, it is contended as much concern should be manifested in the preservation intact of the public moneys which are the fruits of taxation.

The source of this power and right of preference, it is asserted, is grounded mainly on the common law and upon certain provisions of our constitution.

Whatever of the common law is in force in this jurisdiction is here by the terms of the statute adopting it, enacted at an early day and incorporated in section 498 of the Revised Statutes of Wyoming. It reads as follows: "The common law of England, as modified by judicial decisions, so far as the same is of a general nature, and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law, prior to the fourth year of James I (excepting the second section of the sixth chapter of 43 Elizabeth, the eighth chapter of 13 Elizabeth, and the ninth chapter of 37 Henry VIII), and which are of a general nature and not local to England, shall be the rule of decision in this territory (state) when not inconsistent with the laws thereof, and shall be considered as of full force until repealed by legislative authority."

The British statutes excepted from this act of adoption are: "An act for avoiding trifling and frivolous suits in her majesty's courts at Westminster" (Stats. 43 Eliz., c. 6, sec. 2), "An act against usury" (Stats. 13 Eliz., c. 8), "A bill against usury" (Stats. 37 Henry VIII, c. 9). The period fixed for transplanting the common law into this country and the time in which it is considered as having effect in this jurisdiction is the fourth year of James I, the period when the first territorial or colonial government was established in America and with it the common law of England as it then existed: Penny v. Little, 3 Scam. 304. The charter to Gates, Somers, and others for the colony of Virginia was granted in the fourth year of that monarch, on the tenth day of April, 1606, and by it provision was made for the establishment of a government in the wilds of America 209 which should rest upon the reason, the experience, and the luster of the British jurisprudence. By our statute, the common law is adopted with "all declaratory and remedial acts or statutes made in aid of or to supply the defects of the common law," prior to the time when the first colonial government was established by England upon American soil, with the exception of certain statutes mentioned, and these curative and remedial

statutes must be as well consulted as the common law in order to ascertain the body of law adopted here.

The right of the crown to have its debts preferred was of very ancient origin and was recognized in Magna Charta. It was held to be an incident to sovereignty, and not as a personal right attaching to the king's person. It was modified by a number of statutes which were incorporated in the body of the common law by our act of adoption. These were the statutes of 9 Henry III, statute 1, chapter 18, of 25 Edward III, chapter 19, and of 33 Henry VIII, chapter 39. By them, the prerogative of the crown was shorn of its original oppressive character. Anciently, the subject had first to pay "gree" or satisfaction to the king of the king's debt, before he could have execution against the king's debtor; and if he sued the king's debtor without first satisfying the king's debt, the writ of protection ran against the subject seeking his remedy or process against the king's debtor. The last statute in point of time (33 Henry VIII, c. 39), as construed in the case of Giles v. Grover, 9 Bing. 515, in the house of lords, decided in 1832, as appears from the opinions of the judges, permitted the subject to secure judgment and obtain process thereon against the king's debtor, without first making "gree" or satisfaction, but the king had the right to pursue his remedy concurrently with the debtor even after the judgment of the latter and even if process had been issued and executed thereon, if the title to the property remained unaltered in the debtor; and the king's process in such a case, although issued after the process of the subject, was entitled to preference. The proceedings between sovereign and subject is aptly termed in the opinion of one of the judges "a 210 race with the crown." It was held that the sheriff holding the property of the king's debtor, seized under a fieri facias but not sold, could not defeat the subsequent process of the king, either by extent in chief or in aid, which were in effect deemed the same, for the reason that before the sale of the property seized under the fieri facias the title to the property had not been divested from the debtor, and the king's process should have preference, although subsequent to that of the subject creditor. It was conceded upon the argument in the case, and so held by the court, that the crown could not avoid an equitable mortgage, or the lien of a factor or of a wharfinger or of "a bona fide assignment in trust for creditors": See Giles v. Grover, 9 Bing. 520, opinion of Patteson, J. This is stated in Tidd's Practice, 1052, 1053, King v. Watson, 3 Price, 6, and

is undoubtedly the rule in England that the transfer bona fide of the debtor's property while he has absolute dominion over it defeats the king's prerogative right, and his preference and priority is lost. So it was held in the much cited case of State v. Bank of Maryland, 6 Gill & J. 228, 26 Am. Dec. 561, and in a state that recognizes this common-law prerogative of the king as in force and applying to the state. So, as a valid deed of assignment for the benefit of creditors under the common law is a transfer of the title by the debtor to his assignee, and vests the property in the assignee secure from any claim of preference or priority of payment of the king, it is clear that the assignment of Thomas A. Kent, the insolvent, executed before the inception of these actions at bar, would defeat the preference of the state and of any municipality therein, even if the common law, as modified by British statutes, adopted by our statute with it, were in this particular the law of Wyoming: Bump on Fraudulent Conveyances, 330; Burrill on Assignments, sec. 6.

In the case of Seay v. Bank of Rome, 66 Ga. 615, it is remarked that the assignee of an insolvent debtor "takes the assets subject to the preference and priorities that the law gives," and the Georgia code, section 1493, is cited in support of that proposition. This section reads: "When a bank 211 surrenders its charter, or the use thereof, it may make, in good faith, an assignment of all its effects for the payment of its debts, as natural persons may, but it cannot thereby prevent such preference among its creditors as the law gives." The common-law rule is, that a general assignment passes the title. Our statute provides the same thing in effect, and it does not provide that the title shall not pass. It authorizes a debtor to make a general assignment without preference or priority of creditors; it requires that this shall be done by indenture, which is the usual method of passing title; it speaks of the assignment as "conveying" an interest; the assignee is empowered to sell by virtue of the indenture and recording, and without waiting for an order of the court; the power of the court over the estate is, by the words of the statute, simply a "supervising" power; another section contemplates that the execution and filing of the assignment shall "transfer the property of the assignor"; another provides that exempt property does not pass to the assignee; and if property is fraudulently conveyed by the assignor, the assignee may recover it or its value from the person who has fraudulently obtained it: Sess. Laws 1890, c. 51.

Hence, neither under the common law nor our statute of

assignments, could the state and the county have any preference or priority, as the title passing by the deed of assignment, the assignment and transfer defeats the preference or priority of the sovereign. It is not certain that the common-law prerogative of the king in this respect is applicable in this country, where it has been held to be contrary to the spirit of our institutions. It has been adopted by statute by act of Congress, and it would seem a proper exercise of the legislative power. The decisions of American courts are somewhat conflicting. They are collected in a footnote to the case of Middlesex County v. State Bank, 30 N. J. Eq. 311, where the opinion of the vicechancellor denying the priority is affirmed upon his opinion: Middlesex County v. State Bank, 29 N. J. Eq. 268. We do not care to decide this point, as it is unnecessary to do so. The assignment of the insolvent's property, 212 both under common law and under our statute, passed the title, and no process could thereafter run against the property, either that of the state or the citizen, and the preference or prior right, if any existed, is thereby defeated.

The following constitutional provision is invoked as giving a preference or priority to the state and its municipalities over the citizen: No obligation or liability of any person, association, or corporation, held or owned by the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released, or postponed, or in any way diminished by the legislature; nor shall such liability or obligation be extinguished except by the payment thereof into the proper treasury": Const., art. 2, sec. 40. The Revised Statutes of the territory of 1887, and the territorial session laws following (1888 and 1890) were declared by an act of the first state legislature to be the laws of the state, in so far as they do not conflict with and are not repugnant to the provisions of the constitution: Sess. Laws 189091, c. 35. It is contended that the territorial assignment law (Sess. Laws 1890, c. 51), in so far as it compels a release of the claim of a creditor in full upon the acceptance of the final dividend on the distribution of the estate of an insolvent, cannot apply to the state or the county, because such a provision is repugnant to the constitutional provision upon which the state and the county must receive the full amount of their respective claims. The provision of the constitution is that no liability or obligation owned or held by the state or any of its municipalities shall be extinguished except by payment thereof into the proper treasury. It does not create, either in express terms or by im

plication, a preference or priority in favor of either the state or its municipality as against its citizen in the payment of the debts of a common debtor, and has no reference to the question of such priority or preference. It seems that if Kent, the insolvent assignor, is a debtor to the state and to the county of Laramie, his debt to either of them cannot be extinguished by a partial payment. A payment or dividend out of the insolvent estate might be made pro tanto, but could not operate as a release of the unpaid portion of the debt, as the assignment law provides, because the constitution expressly forbids the extinction of such a debt except by payment into the proper treasury.

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2. The remaining question to be decided is that of following the trust moneys belonging to the state and the county into the estate of Kent, the insolvent debtor.

Upon the deposit of these public funds in his bank, he became a quasi trustee, as he stood in the shoes of the depositing treasurers, having knowledge of the trust character of the funds and having kept his accounts with the respective treasurers as such. Under our constitutional and statutory provisions, it is clear that the state and the county treasurers are but custodians of the public funds coming into their hands by virtue of their office, and that such moneys remain at all times public moneys while in their official possession or in the hands of their depositaries. The statutes of this state are similar to those of Colorado, and in that state it is held that county moneys received and collected by a county treasurer belong to the county, which may maintain an action to recover the same: McClure v. Board of Commrs., 19 Colo. 122; Sauer v. Nevadaville, 14 Colo. 54; see State v. McFetridge, 84 Wis. 473. In Michigan it was held that a state treasurer as to state funds held a different relation to the state than a county treasurer bears to his county, under the peculiar provisions of the statutes of that state (Perley v. County of Muskegon, 32 Mich. 132, 20 Am. Rep. 637), but we think no such distinction exists here. In the Michigan case just cited, it was intimated that, in the case of the death of the county treasurer, the moneys held by him in his official capacity would go to his administrator, and not to his successor, but our statute requires the executor or administrator of a deceased county treasurer, under severe penalties and increased liabilities, to deliver up, on demand, the books, moneys, and papers of the deceased county treasurer: Rev. Stats., sec. 1828. Then, as is ordinarily the case under like statutory provisions to ours, it appears the moneys received by either a state or a