Page:Federal Reporter, 1st Series, Volume 10.djvu/913

 TORRENS V. HAMMOND, $01 �and caused it to be laid in the hands of the trustees on the nine- teenth of December, 1881. �When the attaohment was laid in their hands, the trustees had, from the proceeds of the sale of the insolvent's stock of goods, an amount sufficient to pay the plaintiff's judgment, but sufficient to pay only a small dividend to the creditors who had filed their claims. The trustees haviug pleaded nulla bona, and shown the above facts in support of their plea, the only question is whether the funds in the hands of an insolvent trustee, under the Maryland in- solvent laws, are subject to attachment by a non-resident crediter of the insolvent under the circumstances stated. This question has been several times before the court of appeals of Maryland, and in that court it has been held that under the provisions of the constitu- tion of the United States the state insolvent laws are, as to non-res- ident creditors, to be treated as nullities, and that when attached by a non-resident creditor the funds in the hands of the insolvent as- signee are to be considered as still the money of the insolvent and liable to the attachment. Evans v. Sprigg, 2 Md. 457; Poe v. Diick, 5 Md. 1 ; Glenn v. Glass Co. 1 Md. 287. This has been so long acquiesced in as settled law in Maryland, that I should not have re- garded the question as open for discussion but for the decision of the supreme court in the case of Kelly v. Crapo, 16 Wall. 610. ^his decision is subsequent to the decisions in the court of appeals of Ma- ryland, and they cannot, it seems to me, be reoonciled with it. �In the rulings made by the Maryland state courts denying the efficacy of assignments under the state insolvent laws to defeat liens subsequently sought to be acquired by non-resident creditors, their decisions were controlled by the clause in the constitution of the United States prohibiting any state from passing a law impairing the obligation of contracts, and by the construction put upon that clause by the supreme court as then understood. It is not, therefore, a question of the construction of the state statute, but a federal ques- tion, which it is the province of the supreme court to conclusively determine. �Until the case of Crapo v. Kelly, 16 Wall. 610, there is no decis- ion in the supreme court (except, perhaps, Bank of Tennessee v. Horn, 17 How. 157) in which the court was required to pass upon the validity of an assignment in insolvency as against a non-resident creditor subsequently attaching within the state in which the insolv- ent proceedings were had. Mr. Justice Woodbury, in 1846, in ��� �