Curia per

In the case of Mairs and Smith, 3 M‘Cord, 54, it was decided that an assignment under the insolvent debtors act, did not effect liens which had already attached, but that the lien was lost by taking the body, and I cannot discover any distinction in the two cases. Indeed the claim of the fi. fa. creditor is stronger in this case, because the act expressly declares that the assignees shall take “ subject to all prior incumbrances,” and so soon as the body of the defendant was taken in execution and the elder liens destroyed, the fi. fa. next in order immediately attached and became an incumbrance on the property. Suppose the defendant had not surrendered his property at all, the fi. fa. creditors might have proceeded with their executions, and the surrender of the property by the defendant could not deprive them of that right. I am of opinion, therefore, that the judge below decided correctly in ordering the money to be paid over to the fi. fa. and the motion to reverse the decision must be refused. I entertain some doubt with regard to the correctness of this mode of proceeding, but as the party against whom it is taken has consented, I did not feel disposed to raise the objection myself. Motion refused.