Beaupre v. Noyes (138 U.S. 397)/Opinion of the Court
The contention of the plaintiffs in error is that by the statutes of the territory of Montana, above quoted, the alleged assignment by Young to Winchester was conclusively fraudulent as to them for the want of the immediate delivery, followed by an actual and continued change of possession of the goods assigned; that their right to so treat the assignment, although such right was specially set up and claimed, was denied; and that, consequently, they were denied a right arising under an authority exercised under the United States. Whether the state court so interpreted the territorial statute as to deny such right to the plaintiffs in error we need not inquire, for it proceeded, in part, upon another and distinct ground, not involving any federal question, and sufficient, in itself, to maintain the judgment, without reference to that question. That ground is that there was evidence tending to show that the defendants acquiesced it and assented to all that was done, and waived any irregularity in the mode in which the assignee conducted the business; and that the question whether the defendants so acquiesced and assented with knowledge of all the facts, and thereby waived their right to treat the assignment as frauduient, was properly submitted to the jury. The state court evidently intended to hold that, even if the assignment was originally fraudulent, as against the creditors, by reason of Young remaining in the store as clerk for Winchester, and assisting the latter in carrying on the business, it was competent for the plain tiffs in error to waive the fraud and treat the assignment as valid for all the purposes specified in it. That view does not involve a federal question. Whether sound or not, we do not inquire. It is broad enough, in itself, to support the final judgment, without reference to the federal question, and for that reason the judgment must be affirmed.

The case of Beaupre v. Noyes, No. 159, is the same case, in respect to the issues and facts, as the above case. It is a writ of error to review the udg ment of the supreme court of the state affirming the order of the court of original jurisdiction refusing a new trial in the above action. This writ was sued out upon the theory that the donial of a new trial might be regarded as a final judgment of the state court within the meaning of the act of congress. But, clearly, this court has no jurisdiction to review such an order. The writ of error in case 159 must therefore be dismissed.

I. V. D. Heard, for plaintiffs in error.

C. K. Davis, for defendants in error. 

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