of the court, is stated by the reporter to have con- CHAP.5. cluded by saying that "the case was, therefore, too imperfectly stated to enable the court to decide the question upon which the opinions of the judges of the circuit court were opposed," and the cause was remanded to that court, with directions to award a venire de novo.

66

The point upon which the disagreement happens is, during the same term," to be "stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall, by the said court, be finally decided. And the decision of the supreme court and their order in the premises shall be remitted to the circuit court, and be there entered on record, and shall have effect according to the nature of said judgment and order."

With respect to the proceedings upon these statements after they are sent to the supreme court, it is sufficient to say that they are the same with those in cases carried up for revision by writ of error.

The parties, as plaintiff and defendant respectively, are to be placed on the docket in the same manner in which they stand in the circuit court.1

No other points than those upon which the judges of the circuit court differed are to be argued or decided. Ogle v. Lee, 2 Cranch, 33, and many subsequent cases.

A resort to this proceeding does not preclude the parties from afterwards bringing a writ of error upon the judgment of the circuit court. Id.

When, upon a certificate of disagreement, the judges of the supreme court are also equally divided,

1 There was a rule of the supreme court to this effect (No. 57), but it seems not to have been included among the rules of that court as "revised and corrected" in December Term, 1858. See Appendix.

PART 5. the cause is to be sent back to the circuit court, and thence dismissed. Silliman v. The Hudson River Bridge Co., 1 Black., 582.

A form for the certificate is given in the appendix. The manner in which the certificate is to be drawn up and settled in the northern district of New York, is prescribed by rule 7 of the circuit court. See Appendix.

PART VI.

OF CERTAIN ANOMALOUS SUBJECTS.

CHAPTER I.

PRIORITY OF THE UNITED STATES.

This is an important subject, which has led to much forensic discussion, and many judicial decisions; but which it is believed, is in general but little understood.

By the act of 3d March, 1797, "to provide more effectually for the settlement of accounts between the United States and the receivers of public money," it is enacted:

"That where any revenue officer or other person, hereafter 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; and the priority hereby established shall be deemed to extend, as well to cases in which a debtor not having sufficient to pay his debts, shall make a voluntary assignment thereof, or in which the estate and affects of an absconding, concealed or absent debtor, shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed."

'Ch. 20, § 5: 1 Stat, at Large, p. 112.

PART 6.

By the collection act of March 2, 1799, it is enacted:

"That where any bond for the payment of duties shall not be satisfied on the day it may become due, the collector shall without delay, cause a prosecution to be commenced for the recovery of the money thereon, by action or suit at law, in the proper court having cognizance thereof; and in all cases of insolvency, or where any estate in the hands of executors, administrators or assignees shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States, on any such bond or bonds, shall be first satisfied; and any executor, administrator or assignees, or other person who shall pay any debt due by the person or estate from whom, or for which they are acting, previous to the debt or debts due to the United States from such person or estate, being first duly satisfied and paid, shall become answerable in their own person or estate for the debt or debts so due to the United States, or so much thereof as may remain due and unpaid; and actions or suits at law may be commenced against them for the recovery of the said debt or debts, or so much thereof as may remain due or unpaid, in the proper court having cognizance thereof; Provided, That if the principal in any bond which shall be given to the United States for duties on goods, wares or merchandise imported, or other penalty, either by himself or his factor, agent or other person for him, shall be insolvent, or if such principal being deceased, his or her estates and effects, which shall come to the hands of his or her executors, administrators or assignees, shall be insufficient for the payment of his or her debts, and if, in either of the said cases, any surety on the said bond or bonds, or the executors, administrators, or assignees, of such surety, shall pay to the United States the money due upon such bond or bonds, such surety, his or her executors, administrators or assignees, shall have and enjoy the like advantage, priority or preference, for the recovery and receipt of the said moneys, out of the estate and effects of such insolvent, or deceased principal, as are reserved and secured to the United States; and shall and may bring and maintain a suit or suits on the said bond or bonds, in law or

equity, in his, her or their own name or names, for the moneys CHAP. 1. paid thereon. And the cases of insolvency mentioned in this section, shall be deemed to extend as well to cases in which a debtor not having sufficient property to pay all his or her debts, shall make a voluntary assignment thereof, for the benefit of his or her creditors, or in which the estate and effects of an absconding, concealed or absent debtor, shall have been attached by process of law, as to cases in which an act of legal bankruptcy shall have been committed."1

The following are the principles which appear to have been established by the judicial constructions which have been given to these enactments, in the numerous cases to which they have given rise.

1. Congress had the constitutional power to enact these regulations, in virtue of their authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States or in any department or officer thereof. In construing this clause of the constitution, it would be incorrect and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power.

Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. The United States v. Fisher, 2 Cranch, 358.

2. The fifth section, above recited, of the act of 1797, extends to debtors of the United States of every description, and not merely to delinquent reve'Ch. 22, § 65; 1 Stat. at Large, p. 676.