Fish v. Hobart

45 A. 479, 69 N.H. 596

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1899
• Status: Published

Opinion

Peasuee, J.

The plaintiff’s claim was not affected by the insolvency proceedings in Massachusetts, unless he in some way became a party thereto. Perley v. Mason, 64 N. H. 6; Baldwin v. Hale, 1 Wall. 223.

The acts of his attorney were not sufficient for this purpose. While the attorney attended the meeting and objected to the appointment of Brown as assignee, he at the same time stated that the plaintiff’s claim might not be proved. The court was fairly informed that the plaintiff proposed to rely upon his rights as a non-resident, and that what was said by his counsel was merely such suggestions as it is the right and official duty of every attorney to make when he believes a fraud upon the court is attempted. The suggestions did not control the selection of an assignee. They were merely advisory, and the fact that in view of them the court saw fit to exercise the statutory power to appoint a co-assignee (Mass. P. S., c. 157, s. 41) cannot operate to the prejudice of the plaintiff’s rights. Nor are those rights affected by the acts of the attorney as assignee, for he was then acting as trustee for the creditors and not as the plaintiff’s agent.

Exception overruled.

Parsons, L, did not sit: the others concurred.