| N.H. | Jun 15, 1868
The Cheshire National Bank in Keene, and Pond a citizen resident .in Rhode Island, as creditors of the defendant, having made their attachment, subsequently, in point of time, to the plaintiffs, of certain personal property, situate in this county, now request this court to continue plaintiffs’ suit, to enable the defendant to procure his discharge in insolvency in Massachusetts, so that it may be interposed here as a plea for their benefit, in bar of plaintiffs’ action. This question is addressed to the discretion of the court and admitted to be not of right, and, as a question of practice, must be acknowledged to be novel in its character. There is no present defence suggested as the ground for the interference of this court, and the case does not fall within the ordinary principles of other cases in which subsequent attaching creditors have been allowed to interfere and defend.
The practice is to allow subsequent attaching creditors to appear and defend when it is alleged that the claim in the first suit is without foundation, or collusive, or invalid, and that there is reason to apprehend that the effect of allowing the plaintiff to recover in his suit would be to divert the debtor’s property from his honest creditors, but not on purely technical grounds. Reynolds v. Daniell, 19 N. H. 397; Pike v. Pike, 24 N. H. 385; Buckman v. Buckman, 4 N. H. 319.
We are not aware that the discretion of the court has been exercised where there was no present defence to the prior action. But the case shows here that the plaintiffs who have the leading attachment are endeavoring to collect an honest claim, and there is no suggestion of collusion or fraud between them and the defendant. The creditors say here that the plaintiffs should be confined to the remedies that other citizens of Massachusetts may have to the defendant’s estate; that plaintiffs should release their lien acquired by superior diligence here because their contract was made with the defendant in Massachusetts with the knowledge of the existence of the insolvent laws there; and that for said reasons the plaintiffs-should take their chance for a dividend at home and relax their hold here. But it is a well settled rule in this country, applicable to preferences.in the cases of insolvent estates, that the lex
What is injurious to the rights of the citizen where the property is situate, should be the subject of positive legislation, and not left to the discretion of the courts. Lipsey v. Thompson, 1 Gray, 243; Leroy v. Crowninshield, 2 Mason, 157; Fox v. Adams, 5 Greenleaf Rep. 245. Hence, in our State, under our express statute law, all real and personal property within the State is held to be bound by the attachment laws of the State. 2 Kent Com. 407.
The property of the defendant being found within oúr jurisdiction, was subject to attachment by any of his creditors, whether resident here or elsewhere in any other State, and so soon as the attachment is made thereon, a valid lien is created in behalf of such attaching creditor. Such has been the interpretation of our laws and the practice under them for a long series of years. Kittredge v. Warren, 15 N. H.
It is understood here that the assignment made under the insolvency laws of Massachusetts, being made by the debtor subsequently to the attachment, would have no effect upon the lien acquired under the laws of New Hampshire. If it operated to transfer the property of the insolvent debtor, according to the doctrine of Hoag v. Hunt, 29 N. H. 106, and Smith v. Brown, 43 N. H. 44, it would only transfer the debtor’s interest subject to this and other existing liens. Any other construction would allow the insolvent laws of Massachusetts to dissolve a lien created by our own statute law, and would give a force and efficacy to the Massachusetts statute law superior to our own. Such a position cannot be entertained under our views of comity.
We understand that one rule recognized in this State, as laid down in Smith v. Brown, coincides with the decisions in Massachusetts, where it is said that an assignment by an insolvent debtor in another State, valid by the laws of that State, is valid here, so far as to protect personal property situated here at the time of making it, against an attachment made by a citizen of the same State where the assignment was made. Whipple v. Thayer, 16 Pick. 25; Daniels v. Willard, 16 Pick. 36; Burlock v. Taylor, 16 Pick. 335.
In the two first cases cited from Pickering’s Reports, it will be found that the subsequent assignments made by the insolvent debtor were not set up against the previous attaching creditors. It is enough for us to say here in this case, that we cannot discriminate in favor of the subsequent attaching creditors. The plaintiffs have availed themselves of their
There are other difficulties involved in plaintiffs’ request. If we grant the continuance here of the plaintiffs’ suit, have we any assurance that the insolvent debtor can procure his discharge in Massachusetts ? Is it a matter of right for the subsequent attaching creditors to avail themselves of such discharge, and use it against these plaintiffs. We think it is asking too much of the court here to leave the beaten track of the law for the devious and uncertain path recommended by the petitioners. Our decision, therefore, is, that the application for a continuance be denied, and that a judgment be rendered in this case for the plaintiffs, as of the last trial term.