Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1842-09-30

o' IKE validity, and of like consideration IN ,Io
Do. mere is this difference to be observed
tho righ, "o ngn. acquired by Judgment and
,is"' acquired ny an attachment ON original
process judgment is only n aona.ai .sa,, 49,
ny speclbc lien like an attachment, A No.
'e"', vi the execution issued upon il yyban Sol;v
er9h 10 the sheriff, binds all The prouer,v " ,ra
ueooI' nus ands IN the one case, and his goods il,
"i". ' ,'. an attachment binds only tbs parc-
'lar property atinched-the pronerty If norsonJ
peing taken INTO the possession or the officer rnJ
neld IN ms custody for tho benef, of the credi,n
u nSnN'y The judgment no may recover.
10y 'no Jaws OF this State, property attached on
m'o"e process, II real estate, s holden five calen
Go,,, ,I' anu u personal estnte, thirty days
rom me time final judgment is rendered in ,he
SUIT 10 answer the Judgment and unless ,aLen IN
J,N"i w'nn The time limited, the properly is
u'eIhaIBcd from Tie attachment This lien nv mr.,
',,''! VI "eShe process is given Ivy statute "A
substitute tor the lien by judgment or award of
eHSc"Uoh existing at common law: md undouI,t
edIy, an attachment here binds the lands -, ~,
attached during the time fixed by law. M e6sc,uD
any as a judgment, or execution sued mn lid
lands or goods in England Tn. lien. m II, .nr"
IS deensble but nothing will defeat /, i'm, ,h,,
PaitIn failing IN his action, or not taking ON or
IuVyIhg his execution within The time presc,iI,oJ
ai'sr Judgment, or The defendants SATISFYING the
Judgment before sale of the goods or lew unon
tho lands. IVY "Po"
Inc nature and effect Of an attachment. ns If
eA's's IN inns Stale as well as in Massachusetts is
Wen s'ated 10 the case Of Grosvenor u.s. GouLd
lass SOo' IL Is there said, that by the laws of
massachusetts, goods may he atiachei o,, the orig
maj process, and held thirty days after Judgment
" ue t"ken IN execution; aud il not seized on ex-
ecu''oh within that lime, then, and not till then
me attachment is dissolved. Aud il is added. thar
ny an attachment, tho plaintiff has lien upon the
suneci OF provlslonaly, that is, to the amount of
| tne judgment he may recover and in so tnuch is
me absolute property Of the defendant diminished
W rue, That III the case of an attachment. no
more 'hnn IN the ca ie of Judgment is the pener
! ~ property in the subject of The lien altered mr.
changed, until execution executed IJptl then.
.no general properly continues in the defendant
ana u lie becomes bankrupt before the writ il ex
ecuet, the property pnsses to and vests in Tho as.
sghee SUBJECT nevertheless to the existing lien.
Is principle long ago settled in England.
''"' Jn"gment and execution so far binds The
goons, That II the judgment debtor dies after the
award 81 execnsloDthe sheriff may proceed against
Tue goods that were his, in the hands of his eYoc
utors or administrators Specious affections havo
neeh very often urged against this doctrine. md
! ineY nave been as often overruled In Errror ~,
BROOKS. Mod. lo8, it was objected, that Nv the
words OF the feri facias, it run against the goods
v, "onn BROOKS, ana by his death they ceased TO be
his goods, and became the goods of his admins
traitor; and in Parsons u.s. Gu 7 r. Rem Of nois
II was urged, that the execution ought not to have
oeen executed upon the executors of Gill; for thar
! IL imported only command to take in execution
'he goods OF Gu, and Whatever was his in his life
une, upon ms death ceased to be his, and became
ms executors, aganst whom the authority given
by the writ did not extend In lYnpborne NO To-
mead, Bos. and Pal. 57l, il was further urced
uai the defendant died hsovent leaving bond and
o'ner creditors, Tor whom the administrator was
20 he considered u trustee, and therefore the exc.
cu'iph ought not TO bind the goods: in Bragner
rs. L1ngmeai, +. Rep. 20, it was Objected. Thar
no
Tie real justice of the case because ithcrehv one
e'e'''or would obtain an undue preference TO the
prejudice OF the other creditors and in Oaies ~,
" oodcard, Mod. 81, it was said to be n yery
lneqn,tahie thing for by this means one creditor
"o"'" run away with all, and leave the rest moth
lnS' and This would be both against conscience and
law, and kind of fraud. But in all these cases
as had oeen uniformly adjudged before in Others
" was hehi, That the properly being bound by the
award OF the writ before the death of the Darty
u might he taken IN execution after; aud in the
atier case Lord Holt, With NIL his LEGAL acpnnen
aud depth of penetration, was not able to under.
stand, how 1t could be fraud TO get a lust debt nv
due course of law
=, Inc principle Of these was adopted i'm
massachusetts, in the case Of Grospsnor U.s. Could
already cled, as applicable TO attachments In
'hat case, 1t was held that goods attached OIL mesne
process, might lawfully be sold by the sheriff uI,-
on me execution, although the Judgment debtor
nna oiel insolveht after tie judgment and award
vi execution, and before the sale-the court OH
serving, that undoubtedly goods in Massachusetts
were Us nLch bound by attachment, during the
,''''e ''ey were holden, as goods in England were
ny ana from the fese of tho writ. The law, be-
yond doubt, is the same in this State notyyitb-
S'ahdiig HE statute provision, that when the es-
.a'e Oh any person deceased shall he insolyent md
insufficient to pay all the debts owing the estate
snail be distributed FRO rata, among the creditors
proportion 10 The sums 10 them respectively due
N. -, al. a
OF the lnsolvent debtor, then, to he sure by I'M
other provision OF the statute, the suit is dlscon.
unuen, anu the attachment Of course dissolved, in
IKE manner as it is under the bankrupt act where
me creditor comes in and proves his debt. But
uhaer The latter net, nothing but proof OF the debt
under the bankruptcy unless indeed be the bank
rupts certificate of discharge, will prevent the
creditor from proceeding in his suit to judgment
and execution.
The decisions under the English bankrupt acts
nave no application to The question arising in this
case, Tor those acts, instead of saving liens rs our
nct does, expressly avoid all Judgment and execu-
non liens whatever. The statute 81 Jac. |. c. 10.
s. ~ cnac's, that creditors by judgment, statute,
or recognzance, whereof no execution or extent
IS served or executed on the lands or goods of the
bankrupt before his becoming bankrupt shall not
De relieved for nioro than rateable part Of their
JUST debit Under this act, liens by judgment or
execution have no operation or effect whatever
IL, therefore, the judgment debtor becomes bank
ruPt before execution executed the property vests
absolutely in the assignees, discharged OF the lien,
from The time of the act Of bankruptcy comml-
tel and the creditor, having no subsisting lien,
cannot lawfully take the properly in execution
But II the property is seized upon execution, tho
not sold, before the act OF bankruptcy, il does not
pass TO the assignees; for by the SEIZURE without
sale, the property is altered and divested out of
The debtor, before any title accrues to the assign
ees.
The clnnse in the net OF Congress, as has been
before observed, isgenera saving all liens without
specification Or distinction; md il has been already
seen that an attachment by the laws OF this state is
as much lien on properly, as judgment is by the
laws oil some OF the other states. II is impossible
10 distinguish, under the bankrupt act, otherwise
than arbitrarily between lien by judgment and
a lieu 10y attachment; and from the provisions of