Thompson v. Tetley

41 A. 179 | N.H. | 1896

It is immaterial that the defendant knew or had good reason to believe that the Laconia company was insolvent. Assignments of claims against an insolvent debtor are not within the provisions of the 26th section of the insolvency law. P. S., c. 201, s. 26. That section relates exclusively to transfers of the debtor's property.

Assuming without inquiry that, as the plaintiff claims, the rights of the parties are exactly the same as they would be if the defendant instead of acting through the agency of the A. S. B. Co. had himself instituted and prosecuted to judgment the suit in Illinois, and had directly and personally received the money, the action cannot be maintained. The satisfaction of a creditor's demand against an insolvent debtor by the operation of the law of this state (Hurlbutt v. Currier, ante, p. 94) or of any other state, without the debtor's co-operation or consent, cannot be a wrongful preference or payment. The exercise of a right which the law gives cannot be unlawful. The statute of insolvency has no extra-territorial force. It could neither dissolve the defendant's lien obtained by his action in Illinois upon the Laconia company's property there found, nor afford any objection to the prosecution of the suit to final judgment. Sturtevant v. Armsby Co., 66 N.H. 557, and cases cited; Barth v. Backus,140 N.Y. 230.

By that judgment the defendant's title to the money is conclusively established. Lawrence v. Batcheller, 131 Mass. 504; Proctor v. Bank, 159. Mass. 223; Marine Credit Co. v. Hunter, L. R. 3 Ch. 479. There is no statute making the title so acquired voidable by the assignee, if such a statute could be constitutionally enacted by a state legislature. The question whether the prosecution of the Illinois suit might or would upon seasonable application have been enjoined (Dehon v. Foster, 4 Allen 545, — S.C., 7 Allen 57; Cole v. Cunningham, 133 U.S. 107) is not raised.

Judgment for the defendant.

PARSONS, J., did not sit: the others concurred.