O'Neil v. Harrington

• Decision Date: 03 November 1880
• Citation: 129 Mass. 591
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Catherine O'Neil, administratrix, v. John Harrington & trustee

129 Mass. 591

Catherine O'Neil, administratrix, v. John Harrington & trustee

Supreme Court of Massachusetts

November 3, 1880

Bristol. Trustee Process, dated February 5, 1878, and served on the trustee on February 8, 1878, who in his answer admitted funds of the defendant in his hands. On April 20 1880, judgment was rendered in the Superior Court for the plaintiff against the defendant; but no judgment was entered as to the trustee, and no execution issued against the defendant. On May 8, 1880, the defendant applied for the benefit of the insolvent laws; the first publication of notice of issuing the warrant was made on May 10; and the assignment in insolvency was made on June 11. On October 16 the assignee in insolvency was admitted as a claimant of the funds in the hands of the trustee; and the question arose whether the plaintiff was entitled to the fund under the St of 1880, c. 246, § 7, (which took effect on May 24, 1880,) or the claimant under the Gen. Sts. c. 118, §§ 19, 44. Bacon, J. allowed the claim of the claimant, and discharged the trustee; and the plaintiff alleged exceptions.

Exceptions sustained.

H. A. Dubuque, for the plaintiff.

M. Reed, (D. V. Sullivan with him,) for the claimant.

Gray, C. J. Ames & Endicott, JJ., absent.

OPINION

Gray, C. J.

An assignment in insolvency relates back to the date of the first publication of notice of the issuing of the warrant, and has effect as of that time. Clarke v. Minot, 4 Met. 346. Andrews v. Southwick, 13 Met. 535. Gallup v. Robinson, 11 Gray 20. Butler v. Mullen, 100 Mass. 453. But the extent of its operation depends on the law in force when the assignment is made. Attachments of the debtor's property are dissolved, not by the publication of notice, but by the assignment.

An assignment in insolvency, under the Gen. Sts. c. 118, § 44, dissolved all attachments existing at the time of the first publication of notice, without regard to the length of time they had been in force. But no assignment of this defendant's estate was ever made under those statutes, nor until after the St. of 1880, c. 246 § 7, had taken effect, which saves all attachments made more than four months before the commencement of the proceedings. No right to defeat the plaintiff's attachment had vested before the passage of this statute, and the effect of any assignment made since its passage is limited by its provisions. It was therefore erroneously ruled...