Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1844-11-15

ted by the bankruptcy. But how can that be, un-
less the lien lien, is saved by the act and if
it be saved, il is quite mmaeral whether the iudp-
ment is recovered BEFORE pending, or after the pro-
ceedings in bankruptcy II seems to be supposed
and indeed is distinctly asserted by the court that
by the judgment the nature Of the lien is altered
and changed, SO that the right of the creditor I'M
der the attachment from being conditional and con-
tingcnt, becomes, by operation OF the Judgment
fixed and absolute; that is, as ! Understand it. un
CONDITIONAL certain, and settled Now, ] am una
bic to see why the lien is not conditional and con-
tngent as well after judgment as before. The
Judgment, it is true, ascertains the debt but the
judgment is only one step in the proceedings. The
lien is still DEPENDENT for ultimate effect, on an
other and further condition. The execution must
be taken out and levied upon the property, if per-
sonal estate within thirty days, and if real estate
within hve calendar MONTHS after judgment; and
unless it is so levied, the attachment is dissolved
1t can make no difference, therefore. that judgment
has been recovered, if the execution is not levied
before the filing OF the petition in bankruptcy for
in such case, the execution upon the Judgment may
be set aside, when the certificate of DISCHARGE is
granted on the application Of the bankrupt or the
asst gnee, unless the attachment of itself irrespec
tive of the judgment, is held to be lien which il
saved and protected by the act. If the attachment
be not such a lien, then nothing short of a levy of
the execution on the property attached before the
filing of the petition in bankruptcy, would give the
creditor any absolute valid right; and the result
would be, that the attachment is of no efficacy
whatever, since levy Of execution without pre-.
ylous attachment would be Just as beneficial to the
creditor a levy with.
But all the reasoning founded on the assumed
conditional contingent nature of the lien by at
tachment, well as upon the property being mere
ly in the custody of the law, is fully answered as
it appears to mey>by the observations of the court
in the case Of .4udtyUS. Halsey, Gro. Car l49 In
that case it held. that goods taken upon an ex-
ii n rtut b.,Cr l..
uptcy OF the debtor, though the goods are not de-
yered to the creditor by the sheriff upon a liter
ate until after the bankruptcy, may be held by the
creditor against the commissioners under the bank
rupcy. The court said, that the goods, being ex.
tended quasi IN cUStodia iegS, so the debtor
has not any power to give, sell, dispose Of them;
and although by the ertent the creditor has no abb
soluo interest or property in them until the deliv.
cry by the ll6erdte on appraisement and at the re-
turn Of the writ may refuse them for being over
valued yet that is for the advantage of the credi-
tor; for they are as goods gagged or dlstrained
which cannot be forfeited by outlawry, or taken in
execution from the party who has them in gage, or
by way of distress, without payment ofthe money;
for the goods are bound by the teSte of the writ of
extent or execution sued.
Now, is not most of what is said in the case lust
cited applicable TO an attachment? BY the extent
upon statute staple, the goods sesed into the
hands of the king, or, in other words, taken into
til there is another award Of the court, Uiz. hber-
dte which is a conditional writ, ordering the sher-
if to cause the goods to be appraised and to de-
liver them to the CREDITOR if he will accept them on
tue valuation, which he may do or not at his cleo
ton. The extent has no more absolute operation
than an attachment, and each is dependent for final
effect on after proceedings. Under both, the goods
sesed are pledge security for the debt, equal
y perfect and valid in the first instance, and the
after proceedings have relation to the first seizure
so as to overreach and avoid all intermediate claims
by others under the debtor
1t has been observed by learned Judge by way
of apology for the absence of English authorities
OH the subject, that since the statute 81 JAG l. c.
10, the question to the effect of an attachment
could not arise in England. That is true because
It was provided by that statute, and continued
until very recent and very material modification
OF the enactment, that creditors having their debts
secured by judgment, statute, recognizance, or
having made attachment according to the Gus
tom of London, where execution or extent 10
served executed before the debtor became bank
rupt shall not be relieved for more than raeable
part of their just debt But how did the law stand
before that statute? That is a material inquiry
1t has been supposed that there is no authority to
answer this inquiry but that seems to be mis-
take. In the of .4udiey Us. HaiSeB already
cited the court referred to the provisonin the stat
ute 81 JAG. |, and said that the provision proved,
that after the bankrupt act of the 3 Eliz. 4 until
ruptcy had no power to NEEDLE with goods taken
upon foreign attachment; yet, added the court,
the goods are but as pledge to draw the party to
answer, and If he appear the foreign attachment is
discharged. What was this but saying, that indie
pendent Of the provision of the statute of James,
the right acquired by creditor under a foreign at
tachment, though conditional and contingent in the
fullest sense, would remain valid and efectual not
outstanding tie bankruptcy of the defendant
Now, it is worthy of special notice, that our bank
rupt act is not only without any such provision as
that of the statute Of 81 JAG. l. but expressly and
positively saves and preserves all liens, mortgages,
and other securities property, real personal,
which valid by the laws of the respective states
But it is said that where the bankruptcy of the
debtor mtervenes after an attachment, and while
the suit is pending, followed up by a certificate of
discharge, no judgment can be recovered in the
suit to give effect to the len because the act
makes the certificate of discharge discharge of
the debt. This, in my opinion, to use scholastic
phrase, is begging the question. Whether the GER
lifcate is bar to recovery of judgment, depends
upon the decision Of previous question, whether
the attachment is lien or security valid by the
laws of the State and SO within the saving provis-
ion of the act If it be such lien or security,
then by the very words of the provision, the cerf-
cate of discharge cannot in any way annul, Destroy
or impair it, 1t is excepted from the operation of
the certificate, like mortgage any other lien or
security which is saved and Judgment, or what
ever else may be necessary to give effect to the lien,
may be had of course.
The act declares in general terms, that the dis
charge and certificate shall 4" lie deemed full and
complete discharge of all debts, contracts and 9TH
er engagements Of the bankrupt, which are prove
able under the act, and shall and may be pleaded
as full and complete bar to all suits brought i'll
any court Of judlcature whatever. IL Is TO be OBJ
served that the act makes the certificate of dis
charge, not discharge of the person of the bank
rupt merely, buta discharge of the debt ITSELF and
declares that it may be pleaded as a full and COM
plete bar to all suits whatever. Upon the words of
the act, there is foundation for distinction be-
tween u suit in rem and suit IN perSonam. Taking
the provision by itself, and giving it literal effect,
there could be no remedy even upon mortgages
for, if the debt, which is the principal, is extin-
gulshed or discharged, all remedy upon the mort
gage which is the incident, is discharged and gone
Ilt,r lnnl 10 oil IL,