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

Under the English statutes, the property OF the
nssignees relates back TO the time of the act Of
bankruptcy and If such was the cnse here under
the uct of Congress, it would be clear TINT any
attachment, or levy of execution without prior at
tachnent, after the act Of bankruptcy, would be
void as against the assignee But there Is no
provision in the act TO that effect. On the contra
ry, the act vests the property in tho assignee from
the time of the decree Of bankruptcy.
The third section OF the act declares, that all the
property und rights Of properly, OF every name
and nature, o. every1bankrupt, except, sc. who
shall by decree be declared bankrupt, shall, by
mere operation Of law pso facto, from The time q
such decree, be deemed to be divesod ont OF such
bankrupt, and the same shalt be vested, by force
OF such decree, in the assignee, who shall have
all the rights, titles powers &c. 10 sell, dispose
OF, and sue for the same, fully as might he ex
ercised by such bankrupt, before or al The time d
his bankruptcy declared as Aforesaid; and all SUITS
then pending in which such bankrupt is party,
may I've prosecuted and defended by such assignee,
in the same way, aud with the same effect, MS
they nigh, have been by such bankrupt.
The fifteenth section also declares, that all
deeds OF lands sold aud conveyed 10y the assignee,
made in the manner provided therein, shall he
etlectual to pass the titlc of the bankrupt rs it
made by the bankrupt himself Immediately before
the decree Of bankruptcy.
These enoctments it appears to me, are too
strong and plain, too positive and unequivocal TO
be argued or explained away. They seem to nd
nit of but meaning in relation 10 the point in
question, and appear 10 DO so explicit and precise
in regard it, to leave, in the absence of any
opposing provision, no room whatever for con-
struction. They treat tho bankrupt as the legal
owner of the property up TO the issuing OF the
decree, and tie down the title of the assignee to
that time so as to preclude it's relation back. All
the property then owned by the bankrupt passes
TO and vests in the assignee, and consequently
all debts existing before and ut the date OF the
decree are proyable under the bankruptcy, ant all
debts IN to that time barred by the bankrupts
certificate of discharge. Still 10 some purposes,
the rights q the assignee undoubtedly extend
back by relation. Though he is not actually in
vested with the very property until the decree Of
bankruptcy, he may avoid many mesne acts done
to the prejudice OF the general creditors, such rs
fraudulent preferences and payments or lraudu-
lent transfers IL contemplation of bankruptcy,
and other transactions fraudulent or void on
general principles of law. Perhaps too, the
property in the intermediate time between the
filing of the petition and the decree, may be con-
sidered remaining in the bankruplin trust for
the creditors, or in the custody of the law and
under its protection. In this view, the property
would moi be luble to be attached on mesne pro
cess, or to be taken on execution without prior
lien, after the filing Of the petition; nor il taken
before, would the transaction be protected, IL the
attachment execution be cousive, or, perhaps,
if there he notice Of the act of bankruptcy, or of
the intention of the party to petition for decree.
The transaction, like payments or conveyances IN
contemplation of bankruptcy might he treated as
a fraud upon tho act, and therefore void.
But where the attachment is not liable to any
of the objections mentioned and bona tfde lien
has been acquired before the filing of the petition,
it would seem that the property may he taken in
execution whenever judgment is Obtained in the
suit, whether before or after the filing OF the peri
ton, or before after the decree of bankruptcy.
The properly, if holden at all, is holden TO satisfy
the judgment which may be recovered; md if the
lien is saved by the act. the act must be so con-
sirued as to give full effect to the lien and secure
10 the creditor the full benefit of il. Indeed,
doubt whether the bankrupts certificate OF dis
charge, when Obtained, notwithstanding the gen
eral operation given to it by the act would be al
lowed in such case to prevent recovery OF Judg-
ment II the certificate is pleaded in bar of the
action, why may not the plaintiff reply over the
fact OF his lien, and huve judgment, with the
right take execution against the property
attached? In sumo cases at least, this must
he allowed Obvious injustice will he done.
Where land attached has been afterwards sold
or mortgaged, or a subsequent attaching cred
iior has first obtained Judgment, and levied,
or may levy upon the land shall not the
creditor, first in point of time, be allowed to
proceed TO Judgment and have The benefit OF
his attachment? But however this may be, il
appears TO me that at any rate there can lie no
doubt, IN any view OF the question: as 10 Inc
right ofthe attaching creditor, where he has OBJ
tanned judgment before the decree of bankruptcy.
In the present case, the property was attached
before the aledged act Of bankruptcy was com
mtted, and the judgments were obtained, and The
property siezed upon execution, before the filing
Of the petition, though after the act OF bankrupt
cy. This being the case and no fraud or collision
being stated or shewn, there is, in my opinion, 10
ground for injunction to restrain the sale of the
property on the executions. But as the principal
questions here discussed have been otherwise de-
cided bya most learned and accomplished Judge,
whose opinions entitled TO the highest consd-
Grafton, end as the is one of emergency, moi
admitting OF any delay, the properly being posted
for sale TO morrow il seems 10 be proper dis
chdrge OF my duty to grant the Injunction and
shall accordingly do so, with the understanding
that on the motion 10 dissolve it, the question vii
be adjourned into the Circuit Court for final decis
ion, so that the parties may suffer no injury from
any error Of opinion on my part.