[Beach vs. Viles et al.]

ties of the first and second part, and nearly all those of the third part, signed and sealed the indenture on the day of its date, and all who are now parties, became so within the term. of six months, therein prescribed. • The assignees took possession of the property assigned on the same 15th of December, and fitted and prepared the same, (a large portion of which consisted of materials in hands, of manufactures in an unfinished state) for sale. They also collected the demands, as far as practicable, and realized in money from the whole personal property and effects, including the sums expended in completing and preparing for sale, the sum of $8309 28 cents. They also advertised the real estate; but were prevented from effecting a sale by reason of certain attachments thereon. This real estate they estimate to be worth $2000, which cannot be reached by the trustee process. It also appears from the answers, that the consideration for the said assignment was truly, as therein expressed, for sums justly due from Loud and Hunt, to the said defendants and other creditors; and the liabilities before, that time incurred by Holbrook for Loud and Hunt, to a greater amount than the whole value of the property so assigned; that the whole proceeds of the said property and effects had actually been applied in part discharge of the said dues and liabilities before the service of the plaintiff's process, and in pursuance of the provisions of said indenture; excepting the sum of $805 44 cents, in the hands of Viles and Atkins; which last sum, they held to be appropriated according to said trust, and that no farther sums would probably ever be realized therefrom. That the sums necessarily expended by the assignees, in and about the premises, amounted to $1626 57 cents, that the assignment, was made bona fide, and without any intent to defraud, delay or hinder any of the creditors of Loud and Hunt from recovering their debts.

And they further declared that the defendants had not at the time of the service of the plaintiff's writ upon them any goods, effects or credits in their hands or possession belonging to Loud and Hunt or either of them. It also appears from said answers that Holbrook was perfectly solvent in his own affairs, and free from debt, excepting as

[Beach vs. Viles et al.]

the surety of Loud and Hunt, and that the assignment was expected to prevent his becoming insolvent on their ac

count.

The question before the circuit court was, whether the defendants, upon their said answers and disclosures, should be charged as the trustees, of said Loud and Hunt, or discharged.

The circuit court having intimated that this case fell within the principle of the decisions of the supreme judicial court of Massachusetts, and particularly the case of Andrews vs. Ludlow et al. 5 Pick. Rep. 28, the counsel for the plaintiff declined arguing the case; and judgment was rendered, that the supposed trustees be severally discharged on their answers. The plaintiff then sued out his writ of error, to have said judgment reversed..

The case was argued by Mr Webster for the plaintiff in error; Mr D. A. Simmons for the defendants.

Mr Justice STORY delivered the opinion of the Court. After stating the facts, he proceeded as follows:

The present 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 upon the construction of that statute by the state courts, are entitled to great respect; and ought in conformity to the uniform practice of this Court to govern our own decisions. This consideration saves us from the necessity of discussing many of the questions which have been so elaborately argued at the bar. If we were called upon to decide them upon general principles applicable to conveyances, which are assailed as being in fraud of creditors; we should have much difficulty in arriving at a conclusion upon some of the points, and should require further time for deliberation. But we are of opinion, that the case may be finally disposed of upon a single ground, which has received the sanction of the highest state court of Massachusetts. It is this. It appears from the facts, that the proceeds of all the property received by the assignees under this assignment, are insufficient to pay

[Beach vs. Viles et al.]

the amount of the just debts and demands due, bona fide, to the assignees. Under such circumstances, the established doctrine in Massachusetts is, that the assignees cannot be holden as trustees of the debtor under this process, so as to be chargeable to the creditor, who is plaintiff in the suit. Even if the assignment were held to be constructively fraudulent, in point of law, they would be entitled to retain for their own bona fide debts; for as to these, they stand upon equal grounds with any other creditors. This is understood to be the clear result of the cases decided in Massachusetts; and it therefore becomes unnecessary to go into the more extensive inquiries presented by the arguments at the bar.

Upon this ground we are all of opinion, that the judgment of the circuit court ought to be affirmed with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massachusetts, 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.

APPENDIX.

No. I.

Note by Mr Justice Johnson, on the exposition of the phrase, "ex post fac

to," in the constitution of the United States.

The case in which the meaning of the phrase "ex post facto," in the constitution, came first to be considered, was that of Calder and wife vs. Bull and wife, Dall. 386.

Mrs Calder claimed as heiress to one Morrison, Bull and wife claimed by devise, and the question was devisavit vel non. The court of probate in Connecticut, having jurisdiction of the question, decided against the will; but there was a right of appeal from that decision to the supreme court of errors, provided it was prosecuted within eighteen months. It was not prosecuted within the limited time, and thereby, it was contended, the decision of the court of probate became final against the will, and ought to have quieted Calder and wife in possession of the property.

But Bull and wife made application to the legislature of Connecticut for relief, and obtained from them a resolution, or law, setting aside the decree of the court of probate, and granting Bull a new hearing in that court. On that new hearing, the decision was in favour of the will; and Calder and wife were, of course, evicted of an interest, which they contended had been finally affirmed in them by the previous decision, and the effect of the limitation barring the right of appeal.

The argument of counsel is not reported; but it is obvious from the opinions ascribed to the judges, that in behalf of Calder it was contended, that the act of the Connecticut legislature was an ex post facto law, in the sense of the constitution, and void; and in behalf of Bull, that the legislature had exercised a power, constitutional in Connecticut, and therefore not ex post facto in the sense of the constitution.

This appears distinctly the ground upon which Cushing, the presiding judge, places his opinion. "The case," says he, "appears to me to be clear of all difficulties, taken either way; if the act is a judicial act, it is not touched by the federal constitution; and if it is a legislative act, it is maintained and justified by the ancient and uniform practice of the state of Connecticut."

That state, it must be observed, had at that time no written constitution; and as in Rhode Island at the present day, what it could constitutionally do, could only be decided by what it did habitually. The decision, therefore, rendered at this term, in the case of Wilkinson vs. Leland et al. was precisely that in the case of Calder vs. Bull.

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