Johns v. Brodhag

were of opinion that the surety was entitled only to the priority of payment out of the effects of the insolvent; not to the trial at the first term: Because the clause giving such trial is subsequent to the clause which gives “the like advantage, priority,” &c.; because, by the words of the act, the priority of suit is only given when the duties are due to the United States; because the defendant cannot get a continuance of the cause unless the attorney of the United States be present; and because, in a suit by a surety, many more facts can be pleaded by the defendant than in a suit by the United States — such as the surety had not paid, or an offset, or that he was not insolvent, &c.

The motion was overruled, and the cause took its regular course through the dockets.