[Bank of Columbia vs. Sweeney.] in writing that they may be made negotiable at the said bank, and shall refuse or neglect to make payment at the time the same becomes due, the president shall cause a demand in writing on the person of the said delinquent or deJinquents, having consented as aforesaid, or if not to be found, have the same left at his last place of abode; and if the money so due shall not be paid within ten days after such demand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of the general court, or of the county in which the said delinquent or delinquents may 'reside, or did at the time he or they contracted the debt reside, and send to the said clerk the bond, bill, or note due, with proof of the demand made as aforesaid, and order the said clerk to issue capias ad satisfaciendum, fieri facias, or attachment by way of execution, on which the debt and costs may be levied, by selling the property of the defendant for the sum or sums of money mentioned in the said bond, bill or note; and the clerk of the general court, and the clerks of the several county courts, are hereby respectively required to issue such execution or executions, which shall be made returnable to the court whose elerk shall issue the same which shall first sit after the issuing thereof, and shall be as valid, and as effectual in law, to all intents and purposes, as if the same had issued on judgment regularly obtained in the ordinary course of proceeding in the said court, and such execution or executions shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor; provided always, that before any execution shall issue as aforesaid, the president of the bank shall make an oath, (or affirmation if he shall be of such religious society as allowed by this state to make affirmation) ascertaining whether the whole or what part of the debt due to the bank on the said bond, bill or note, is due; which oath or aflimation shall be filed in the office of the clerk of the court from which the execution shall issue; and if the defendant shall dispute the whole or any part of the said debt, on the return of the execution, the court before whom it is returned shall and may order an issue to be joined, and trial [Bank of Columbia vs. Sweeney.] to be. had in the same court at which the return is made; and shall make such other proceedings that justice may be done in the speediest manner." In pursuance of these provisions of the act, a capias ad satisfaciendum was issued by the bank, against the defendant, on a promissory note, signed by him and indorsed to the bank. The defendant appeared in court, and claimed the right allowed by the act to dispute the debt ; upon which the court ordered an issue to be made up between the parties. The plaintiff offered to file a declaration, tendering an issue on a wager, to which the defendant objected, and the court sustained the objection.. A declaration in assumpsit was then filed, to which the defendant pleaded the statute of limitations. On the trial, the defendant moved the court to instruct the jury, that if they should be satisfied by the evidence, that three years had elapsed, between the expiration of the time limited for the payment of the said note, and the issuing of the execution by the clerk in this cause, upon the letter and paper sent by the president of the bank, and given in evidence; they ought to find a verdict for the defendant, on the issue joined on the plea of the statute of limitations. The court gave the instruction required, and the jury found a verdict for the defendant. The counsel for the plaintiff excepted to the opinion, and has brought the cause into this Court by writ of error. The execution being the first process under this extraordinary act, its emanation must be equivalent, so far as, respects the bar created by the act of limitations, to suing out original process in a suit commenced in the usual way.. There is, therefore, no error in that part of the instruction which relates to the period to which time was to be calculated; and the only inquiry is, whether the defendant could avail himself of the act of limitations.. The great object of the incorporating act appears to have been, to give the bank the most expeditious remedy possible, for the collection of the money due to it. The affidavit of the president supplies the place of a judgment, and those proceedings after judgment, which are allowed for the purVOL. II.-4 K [Bank of Columbia vs. Sweeney.] poses of justice, but may be used for mere delay, are taken away. The execution "shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor." But the law did not intend, by this summary process, to deprive the debtor of all defence. Although all delay was cut off, he was permitted, on the return of the execution, to dispute the whole, or any part of the debt. But while the law allows him to dispute the debt, it still guards against delay. An issue is to be made up immediately, and tried at the same term. While the law thus carefully guards against procrastination, it does not interfere with the defence which the party is at liberty to set up. It does not prescribe the nature of that defence, or deprive him of any which might have been used, had the action been commenced in the ordinary way. Had the bank of Columbia proceeded in the common course of law, the defendant could have pleaded the act of limitations, in bar of the action. If we are correct in saying, that the object of the section of the incorporating act which has been recited, was expedition, not the ademption of legal defences; we think this a mode of disputing the debt, of which he might still avail himself. There is no error in the judgment of the circuit court, and it is affirmed with costs. This cause came on to be heard on a transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is considered, ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs. GEORGE BEACH, PLAINTIFF IN ERROR vs. JONATHAN VILES ET AL. DEFENDANTS IN ERROR. This being a suit upon a local statute, giving a particular remedy, in the nature of a foreign attachment, against garnishees, who possess goods, effects, or credits of the principal debtor; the decisions which have been made on the construction of that statute by the state court of Massachusetts, are entitled to great respect; and ought, in conformity to the uniform practice of this Court, to govern its decisions. [678] · Where under a voluntary assignment of an insolvent debtor, the proceeds of all the `property received by the assignees under the assignment are insufficient to pay the amount of the just debts and dividends due to the assignees; the established doctrine in Massachusetts is, that the assignees cannot be holden as trustees of the debtor, to the creditor who is the plaintiff in an attachment, so as to be chargeable to him in the suit.. Even if the assignment were held to be constructively fraudulent in point of law, they would be entitled to retain their own bona fide debts; for as to those, they stand upon equal grounds with any other creditors. This is understood to be the clear result of the cases decided in Massachusetts. [678] ERROR to the circuit court of the United States, for the district of Massachusetts.. The original process in this case was founded on the sta.tute of Massachusetts, passed 28th of February 1795, entitled "an act to enable creditors to receive their just demands out of the goods, effects, and credits of their debtors, when the same cannot be attached by the ordinary process of law." In said process it is alleged that Loud and Hunt, being indebted to George Beach, as set forth in the process, refused to pay the same, to his damage $4000; and in the process it is also alleged that Loud and Hunt had not in their own hands and possession, goods or estate to the value of $4000, but had entrusted and deposited in the hands of said defendants, goods, effects and credits to the value; and the said defendants were summoned to show cause why execution to be issued on such judgment as George Beach might recover in said suit against Loud and Hunt, should not issue, against their goods, effects and credits in the hands and possession of these defendants. The process was dated the 21st day of November 1826; service [Beach vs. Viles et al.] was made on the 23d of the same month, and it was entered at the May term of the circuit court of the United States, in Boston, in 1827. The defendants, the supposed trustees, appeared, and severally answered under oath, as set forth in the record. From their answers it appears, that, on the 15th day of December 1825, an indenture of assignment was made, which is also set forth in the record, in which Loud and Hunt were parties of the first part; Nathan Viles, Henry Atkins and Daniel Holbrook, preferred creditors, were parties of the second part; and sundry other persons creditors of Loud and Hunt, who might execute the indenture within six months from its date, were parties of the third part. By this indenture Loud and Hunt assigned to the defendants certain real and personal property, effects and demands, in trust, to sell and collect the same, and after defraying all expenses, first, to pay the parties of the second part all sums due them respectively, and all sums for which they were liable on account of Loud and Hunt, as indorsers or otherwise; second, to pay the residue to such creditors mentioned in the schedule thereto annexed, as should become parties, in proportion to their demands, by an equal rate per dollar; third, to pay over the surplus, if any, and also the dividend which would have been payable to any creditor, if he had not-neglected to become a party thereto,, to Loud and Hunt. and There is a clause in the indenture, providing for adding to and perfecting the schedules, to carry into effect the intentions of the parties; a general power to receive and collect, and a clause accepting the property assigned in full; each assignee is to be answerable for his own acts only. The nominal amount or estimate of the property assigned exceeded the amount of debts and liabilities of the assignees; but by reason of losses on property then in hands of certain consignees, and bad debts, the produce thereof fell much short of it. The just claims of those creditors who became parties to the indenture according to its terms, and before the process in this case was served, amount to about $20,000. The par |