Hall v. Boardman

14 N.H. 38 | Superior Court of New Hampshire | 1843

Parker, C. J.

The statute of Massachusetts, passed in 1838, chap. 163, entitled “an act for the relief of insolvent debtors, and the more equal distribution of their effects,” which it has been agreed should be referred to, makes ample provision for the transfer of the effects of the insolvent. The fifth section declares that the assignment shall vest in the assignees “all the property of the debtor, both real and personal, which he could by any way or means have lawfully sold, assigned or conveyed; * * * and the said assignment shall also vest in the said assignees all debts due to the debtor, * * and all his rights of action for any goods or estate, real or personal.” It being conceded that all the proceedings were regular, the assignment was thus valid to pass the property in the hands of the person now summoned as trustee, and the moneys collected by him are now payable to the assignees, unless some other right has intervened since the assignment, and which is superior to it. 5 N. H. Rep. 213, 214, Saunders vs. Williams & Trustee. This right the plaintiff claims to have established by the lien of attachment, in the present action. When, however, we look to the ground of his action, we find that it rests on a negotiable note, which the case shows was made in Massachusetts, by a citizen of that state, payable to another citizen of íhe same state, and at the time of the petition under the insolvent laws actually in suit in a court of that state, in favor of a third party, also a citizen. It was then a debt provable under said act, founded on a contract made after the act went into operation, made within the Commonwealth, and due to a person resident there at the time to which the discharge has reference, and so, as set forth in <§> 7, of the act already cited, liable to be discharged by the course of proceedings. The note was over-due at the time of the transfer, and tfhe present holder takes it subject to every defence to which it was open at the time of the transfer. 5 Mass. R. 509, Baker vs. Wheaton; 10 Mass. R. 337, 338, Watson vs. Bourne. What would be a discharge, the laws of Massachusetts, the place of the contract are to settle. 5 N. H. Rep. 401, Dyer vs. Hunt; 6 N. H. Rep. 150, Douglas vs. Oldham; and inasmuch as the discharge since obtained would have been a good defence to an action on the note there, it must have the same effect here. 12 Pick. R. 572, 581, Betts vs. Bagley. According to the agreement, therefore, let the plaintiff be

Nonsuit.