Lyman v. Bond

An assignment was made for the benefit of creditors under the Gen. Sts. of New Hampshire of 1867, c. 126, while the Bankrupt Act of the United States of 1867 was in force, and a creditor proved his claim and received a dividend thereon. Held, that, if the effect of the statute of New Hampshire was to bar an action upon the claim, it was an insolvent law, the operation of which was suspended by the Bankrupt Act.

Contract against Laban S. Bond and John N. Grout upon a joint and several promissory note for $1000, dated May 13,1873, payable on demand to the order of the plaintiff, and signed by the defendants. Grout alone defended. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts, in substance as follows: On May 13, 1873, the defendants owed the plaintiff $1000, and gave him the note in suit therefor. During the year 1876, and for five months afterwards, the defendant Grout and the plaintiff resided in New Hampshire, and during that period, namely, on November 6, 1876, Grout made an assignment for the benefit of his creditors under the Gen. Sts. of 1867, o. 126.* The proceedings in the matter of the assignment were in due form. Lawful notice of the assignment was given to the creditors, and the plaintiff expressed no dissent thereto, as it is provided by § 3 of said chapter that he may do. The assignment was for the benefit of all the creditors of Grout, and most of them signed an agreement, dated November 6,1876, reciting that, in consideration of the assignment by Grout, on the day last named, to Charles Mason, of all Grout’s “real estate and personal property, excepting what is exempt bylaw from attachment on mesne process or levy on execution, in trust to convert the same into money and divide the surplus, after deducting the costs incurred in transacting the business and paying the said Charles Mason a reasonable compensation for his services, among his creditors, in equal proportions according to their respective claims, we, the creditors of the said John N. Grout, whose names are hereto annexed, do agree to said assignment, and that this instrument shall be a release in full to him, the said John N. Grout, of all ovn- claims against him, whenever our just and equal proportions of the proceeds of his property shall be paid to us.” The plaintiff did not sign this agreement, but proved his claim in court under the law above referred to, and received his dividend or pro rata share of Grout’s estate from the assignee. If the plaintiff was entitled to recover, judgment was to be entered for $1080.86 with interest from April 3,1878; otherwise, judgment for the defendant.