Fish v. Fiske , 1891 Mass. LEXIS 113 ( 1891 )

Khowltoh, J.

The agreement in writing filed by the parties, and their request that the case be reserved for the full court on the original appeal, the pleadings subsequent thereto, and the agreed statement of facts, are a waiver of all questions of form in regard to the proceedings previously had, and the manner of bringing the case before us. We may, therefore, consider the entire case on its merits.

If we assume in favor of the plaintiff, without deciding, that the bill was properly brought, and that the decree of the single justice in favor of the plaintiff was well warranted by the facts existing when it was made, the subsequent insolvency of the defendant before the final disposition of the case gives his assignee rights which must be recognized in the interest of the general creditors. It has repeatedly been held that a plaintiff bringing a bill in equity under the provisions of the Pub. Sts. c. 151, § 2, cl. 11, and the St. of 1884, c. 285, § 1, to reach property of the debtor which “ cannot be come at to be attached or taken on execution in a suit at law against such debtor,” does not thereby acquire a lien on the property which will prevent its passing to an assignee in insolvency. Trow v. Lovett, 122 Mass. 571. Squire v. Lincoln, 137 Mass. 399. Powers v. Raymond, 137 Mass. 483. Such a proceeding, even if followed by an injunction against any disposition of the property by the debtor, does not constitute an attachment, within the meaning of the Pub. Sts. c. 157, §§ 46, 47, and does not defeat the right of the assignee to have everything that belongs to the debtor which can lawfully be taken at law or in equity and applied to the payment of his debts.

The proceeds of the defendant’s transfer of his membership in the Boston Stock Exchange, which he paid over to his counsel, were a part of his assets, to which his assignee in insolvency is entitled by virtue of the assignment. Barton v. White, 144 Mass. 281. Inasmuch as the plaintiff has acquired no lien on the property, the entry must be,

Bill dismissed.