Assumpsit. Facts found by a referee. March 4, 1895, the defendant, who was indebted to the plaintiff, went into insolvency in Massachusetts. The plaintiff was a resident of New Hampshire and did not prove his claim; but his attorney, acting in his behalf, attended a meeting of the defendant’s creditors called for the selection of an assignee, and objected to the appointment of one Brown.
Cited by 1 later decisions — most recently July 1914
¶2
The acts of his attorney were not sufficient for this purpose. While the attorney attended the meeting and objected to the appointment of Brown as assignee, he at the same time stated that the plaintiff’s claim might not be proved. The court was fairly informed that the plaintiff proposed to rely upon his rights as a non-resident, and that what was said by his counsel was merely such suggestions as it is the right and official duty of every attorney to make when he believes a fraud upon the court is attempted. The suggestions did not control the selection of an assignee. They were merely advisory, and the fact that in view of them the court saw fit to exercise the statutory power to appoint a co-assignee (Mass. P. S., c. 157,
s.
41) cannot operate to the prejudice of the plaintiff’s rights. Nor are those rights affected by the acts of the attorney as assignee, for he was then acting as trustee for the creditors and not as the plaintiff’s agent.
