Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1844-11-15
proceeding, though in form IN personan, is in sub

proceeding, though in form IN personan, is in sub.
stance and effect proceeding IN rem.
But it is unnecessary to pursue the subject FUR
ther for the whole nnteralter all that may be said,
lies within very narrow limits, and may be summed
uD in a very few words. If an attachment is a
lien valid by the laws of the State, and SO except
cd out of the bankrupt act the act has no operation
uDon it. Existing under and by virtue of the State
laws, and being unaffected by the bankrupt law, it
must have such validity and effect as the State laws
give it; and the proceedings in the suit must ne
cessary be the same, quodd hoe, rs though no
bankruptcy had occurred or no bankruptow was IN
existence. On the other hand, if the attachment
be not lien within the saving clause OF the act,
then the decree of bankruptcy pSo )dcto, avoids 1t
in all cases Whatever, including cases Doth OF TORT
and contract where the claim is not pr0Veable I'M
der the act as well as where il is and the property
attached by force and from the time OF the decree,
before certificate of discharge is or can be obtain
ed passes freed from the attachment with the 9th
er property of the bankrupt to and vests in the
sgnee. We are inevitably driven to one or the
other Of these conclusions for there is no middle
ground that can be taken and sustained,ln my opln-
ion by any sound argument or just legal reasoning.
The latter conclusion, am quite sure, will never
be adopted or held as the established law.
Considering then, the attachments as valid and
oficctual to hold the property attached, the only
question is there being no collision between the
bankrupt and the attaching creditors is the case in
the sale of the personal property before Judgment,
his qutclaim of his interest in the real estate, or
his confessions Of judgment in the suits In Eng
land, as property cannot be taken before judgment,
and an execution is the first process by which 1t
can be seized, the giving a warrant of attorney
without pressure to a creditor, with power to issue
immediate execution, if done in contemplation Of
bankruptcy, is held to be fraudulent preference on
the part of the debtor Here a voluntary confess
ion of Judgment under similar circumstances with
out an adverse antecedcnt attachment, would I'M
doubtedy have the same effect. But as property,
here NAV be taken by attachment before Judgment
where it is 50 taken, as it was IN this case, think
the principle does not apply.
And certainly, the voluntary consent to the sale
of property attached, before judgment, ought not
TO be viewed in more untavorabe light, than the
voluntary confession Of judgment with the right to
take the property attached Immediately in execution.
The property in the present case being bound by
the attachments, it cannot be of any Importance
whether it was sold under the attachment before
Judgment or execution after the judgments were
obtained. By the law of this State, goods and
chattcls attached on meSne process may be sold by
the attaching officer with the consent in writing of
the debtorSnd the attaching creditors before judy
ment, in the same manner that property may be
sold on execution. Indeed the property in this
case being of such description that it could not
be kept without expense, the creditors might, under
another provision of the State law, have compelled
sale Of the property before judgment, against the
will of the bankrupt. At any rate, as the sale was
a regular legally authorized proceeding, giving
the creditors no undue advantage, or any greater
right than they already possessed, and was benef-
ca to all parties, working injury to any one, 1t
is difficult to see how the bankrupts consent to it
can on any principle, any more than his confessions
of Judgment, affect his right to a discharge.
As to the quitcaim to the attaching creditors OF
all the real estate attached, it appears as we have
before seen, that the interest Of the bankrupt in the
estate consisted of an equity of redemption worth
at the most only SlS6. 1t may be very question:
=. BILE whether, the estate being ncumbered to SO
large amount, approaching so very near to its ac-
tual value, the equity of redemption could have
been sold for any thing at ALL But however that
may be, the creditors by their attachments, had Sc
cured to themselves all the right and interest the
bankrupt had in the estate: and if he had not quit
claimed his interest to them, they might have gone
on and set it off upon execution. The quitcaim
was given application of the creditors, probably
with u view of saving costs and expense and by
Il the ltC est in the estate transferred TO them
in the form of conveyances, instead of being trans
terred as it would or might have been by levy and
appraisement on writs OF execution. The creditors
obtained nothing more than what they had right
to under their attachments; and what they obtain
ed the bankrupt could not have deprived them of il
he had been disposed to do So | see nothing in
this transaction, any more than IN that OF giving
consent to the sale of the personal property, that
amounts to fraudulent preference on the part OF
the bankrupt; and the result Of the whole is that
none of the objections being sustained, they mus
be overruled and discharge granted.