Sawyer v. Levy

38 N.E. 365, 162 Mass. 190, 1894 Mass. LEXIS 39

Opinion

Allen, J.

The assignment by the defendants to Slater was no doubt a preference, which might be avoided by assignees in insolvency if the defendants were subject to our insolvent laws. Pub. Sts. c. 157, § 96. But no proceedings in insolvency could be taken against them by reason of their non-residence. A preference, given by an insolvent debtor to a bona fide creditor cannot be avoided by an attaching creditor, whether the form of preference which is adopted is a general assignment for the benefit of such creditors as should assent thereto, or an assignment for the benefit of certain specified creditors, or an assignment directly to a single creditor. Otherwise, it would simply amount to giving a preference to the attaching creditor, instead of to the creditor or creditors selected by the debtor. This has often been adjudged. National Mechanics & Traders' Bank v. Eagle Sugar Refinery, 109 Mass. 38. Banfield v. Whipple, 14 Allen, 13. Train v. Kendall, 137 Mass. 366. First National Bank of Easton v. Smith, 133 Mass. 26.

Exceptions overruled.