Opinion
Decided June, 1889.
A creditor who, by proving his claim, assents to an assignment by his debtor under the statute for the benefit of his creditors, cannot maintain a suit at law for the recovery of the same.
ASSUMPSIT, to recover four promissory notes given by the defendant to the plaintiff on and before March 24, 1884, for $5,500 with interest. The writ was dated March 12, 1888, and served by attachment of property March 14 and 15. The defendant pleaded that on March 16, 1888, he made an assignment of all his property for the benefit of his creditors under the statute, and that the plaintiff proved this claim in the insolvency proceedings, thereby giving his assent to said assignment, and submitting the issue to the jurisdiction of the probate court.
To this plea the plaintiff filed a general demurrer.
J. H. Dudley, for the plaintiff.
T. F. Johnson, for the defendant.
The case comes within Gen. Laws, c. 224, s. 34, which provides that attachments are dissolved by the assent of the plaintiff to a valid assignment by the defendant of his property for the benefit of his creditors; and c. 140, s. 3, which provides that actions of assenting creditors shall be discontinued.
The defendant in this action made a valid assignment for the benefit of his creditors. The plaintiff assented to it, proved his claim, and no appeal has been taken from its allowance. The attachment is dissolved, and the action should be discontinued. The case is not governed by Leavitt v. Lovering, 64 N.H. 607; Laws 1885, c. 85, s. 9.
Demurrer overruled.
SMITH, J., did not sit: the others concurred.