Cunningham v. Seavey

Morton, J. The assignment made by A. Anderson and Company to the defendant was a conveyance of all their property to him in trust for the benefit of such of their creditors as should become parties to it. It is clear that the assignee in insolvency of Anderson and Company could avoid the assignment, either on the ground that it constituted a preference to the creditors assenting to it, or was made with a view to hinder or delay the operation and effect of the laws relating to insolvency, or to prevent the property from coming to the assignee in insolvency of Anderson and Company. Steel Edge Stamping & Retinning Co. v. Manchester Savings Bank, 163 Mass. 252. Pub. Sts. c. 157, §§ 96, 98. The defendant contends that he had ceased to act under the assignment at the time of the adjudication of insolvency, and that after that he was rightfully in possession of the funds as custodian for the messenger, and, after his appointment, for the assignee in insolvency ; and therefore that any recovery against him on the ground that the assignment hindered the operation of the insolvency laws of this State, or prevented the property from coming to the hands of the assignee in insolvency, was unwarranted. But, in the first place, the court may not have found as a fact that he had ceased to act under the assignment. [347] In the next place, if it did so find, it might nevertheless be true that the assignment and the possession of the defendant under it operated to hinder the effect of the insolvency laws, and to prevent the property from coming to the hands of the plaintiff. Thirdly, the defendant’s contention, if true, would justify a recovery under the third count, and no harm therefore could have been done to him if the court was wrong in holding that the plaintiff was entitled to recover on the first count. The defendant contends further that the insolvency proceedings and the trustee suit in New Hampshire relieve him from liability in this action. But it is enough to say of this contention that the court may have found that the proceedings and suit in New Hampshire were the result of collusion between the defendant and the parties instituting them, and were not instituted in good faith, and therefore were not entitled to any consideration. The defendant could not relieve himself from liability here by depositing the money in another jurisdiction. Exceptions overruled.