Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1843-08-18


lqueUt proceedings in bankruptcy. The credit
was legally entitled TO the benefit Of the lieu, and
the utmost thar can lie sad is, that the default en-
abled him to obtain judgment tor his debt some
what earlier than hr night perhaps have other
wise done. But il neither gave nor secured to
him any new or greater right upon the property,
or any other preference, than he already right
fully possessed, and could have made effeclua
by a recovery ofJudgment, if not lhen al future
time.
Even n certificate Of discharge if obtained in
the meantime, would not have prevented a recov-
cry o. Judgment. In some cases, such actions
founded on tort, and actions sounding merely in
damages, rs for n breach OF Il contract of marriage
covenant, aud the like, where the claims no,
prova''e under the bankruptcy, the certificate is
no impeachment to Judgment. In Others where
the claims are OF nature to he provuble, the GER
dicae is applicable as a bar, and IN general must
operate as such but If the plaintiff has a lien by
attachment IN any such case, aud the lien is saved
and protected by the act, he must he enlmlrd, on
the general principles OF law, as well as m reason
and justice to the necessary means to make the
lieu ttfectuaL 1t is admitted that the general eff
feet given by the act 10 certificate of discharge,
obiained under voluntary proceeding IN bank
rupcy, must he so far qualified in the of
trust or fduciary debts, though proveabe under
the bankruptcy, as to give the party whatever
Judgment, decree, or process, may be- necessary
10 enable him to enforce his claim and such, it
would seem, must be the legal operation in the
case OF every other right whether springing out
oil lien, mortgage, or other security, which is
saved end projected by The act. To allow the
plnIntiff, ~ The case OF hen Ivy attachment,
to have judgment, and take execution against the
property attached, would he giving him the ben
eft OF his lien and nothing more. 1t would be
IN analogy to the practice adopted in the English
courts in suits against discharged nsolvent,
whereupon the plea of discharge under The
Loids act, judgment is rendered Tor the creditor,
nd Il
OF the insolvent they not being discharged but
remaining liable.
Upon the general question, whether an attach
meni is a lien within the saving clause of the
bankrupt act, ii is quite unnecessary 10 say any
thing because the question has already been de-
cded ~ the affirmative both by this court and The
circuit court 1t may be worth while, however,
to notice here, as an instance of protested i'm
provement III English legislation on the subject OF
bankruptcy, an alteration in the law of that coun-
try touching rights OF analogous character, of
very recent date and of very considerable impor.
lance. BY the statute 81 JAG. |, C. 49, s. 10 which
formed the law in England for more than two
centuries, II was enacted, that creditors having
their debts secured by Judgment statute. or recog-
nlZance, or having made attachment according
10 the custom of London, tghere execution
erfenf is served erecued before the person became
oGnkrupf, that is before the aci OF bankruptcy com
United shalt not be reeued for more than raee Die
part 81 htT just debt. by the present law, 1t is
provided, hut ali executions and attachments a
ganst the lands and teneniens, or goods aud chat
tells OF any bankrupt, bona fde made. executed, or
LEVIED, before The date and issuing of the fiat IL
ganst HIM, shat be deemedt 10 be valid wilhsan-
ding any PRIOR act OF bankruptcy 10y such bank
rupt committed provided the person or persons,
NJ whose SUIT, or on whose account, such eXecu-
ton or attachment shall have issued had not at
the time OF executing or levying the same, notice
oil any PRIOR act OF bankruptcy 10y him committed"
< The second objection, upon the face OF it,
admits That the Judgment covered Ivy Stephen >.
Dowher was right III atIioon; iOr says that the
oahRrup' consented 10 n Judgment for amount
equal to The deJtS he oWed Dodner. The point in
sisted upon seems TO be- that as Duwutr and the
Bankrupt were partners in the late firm of Dow
htr W ilkins n Co.. and The money sued for was
pald ny Downef in satisfaction of the partnership
deb's, ana so on account ut The JOINT concern, the
action, though the money was paid after the
} partnership had expired could not he maintained
Whether II could or not, would depend upon the
particular Circumstances the case which do not
appear; such as whether there WINS al express
promise, or that which WAS equivalent to a prom
se. But However that might he, as the point does
not appear TO affect the merits OF The claim Whirh
formed the ground of the acton, hut goes rather
10 the nature aud form OF The remedy, is deserv-
ing OF very liue consideration here. In all other
respects, this objection rests upon the same cir
cnuisances, and is dependent uron the same
principles, as The first aud the observations made
upon mat are applicable and decisive OF tins,
and need not lie repeated
., The remaining objections are confined to
certain payments aud securities alleged to have
been male and given by way OF preference to
CERTAIN creditors; and ia reference to these il may
he prelnlstd, that the payments, in order TO liar
the Dankrupfs right TO "a discharge, must amount
to fraudulent preferences wilhln the meaning OF
the bankrupt law. What constitutes such pref
erence Is II question concerning which there are
u,tb hntt lao Il.
rlne seems 10 he, that payment, when ii consists
OF an appropriation OF part only OF the debtors
property must he maize IN contemplation of bunk
ruPtcy, aud must be voluntary Both nlusl con-
cur IL It he IN contemplation of bankruptcy, hui
not voluntary, or be voluntary bui not ia contem
plaiion OF bankruptcy, il win not he a fraudulent
preference To make out payment to be in
contemplation of bankruptcy, something more
must APPEAR than mere Insolvency. enough 10
show. II not determination 10 become a bank
rupl at all events, al least that bankruptcy in
view as consequence OF the imsol. ency aud to
he voluntary, the payment must originate with the
aehlor, The FIRST step being taken by him aud hot
by the creditor.
Now, so tar ms concerns the payments 10 Bax-
ter aud Porter, there is no evidence which will
authorize The conclusion, when tairly considered,
that either of them comes within the principle
just lald dOwh. Indeed, there is no proof that a.
ny such payments were in fact made, except what
comes rom The Bankrupt himself on his examin.
hiioh and II The opposing creditor Will rely up
on ile Bankrupts testimony TO establish the fact
OF The payments, he must take the explanations
which the Bankrupt gives concerning them. From
what Is stated by han, il does not appear as IL
some OF the payments, WHEELER they were volun.
tary or not IL appears, however, that two oil
them were made under the pressure of execu-
lions, winch prechIdes the idea of voluntary pay.
nieni. But as 10 any Of them being made IN con-
temptation OF bankruptcy, the Bankrupt, after
stating that all the debs, except Of the TWO IN
execution, were the joint debs Of himself aud
Hunter, and we're paid out OF the partnership
iund, says, that he and Hunter expected to pay
all their debts aud relieve themselves from embar-
rassment, and had no olher view or expectation,
until he was committed 10 jail in July. To hold
these payments 10 be- fraudulent preferences, up
ON MhnI is lsclnsed In regarL 10 Ihem. wound MOI