The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-02-09
The Supreme Court OF the United States.


cip'es, and are to be answered AID argued to
gether. The first in order, is No. 81, Peck and
Bellows, plaintiffs in error as. Jenness ct al de-
PENDANTS in error. to the Supreme Court Of Judi
cature of New Hampshire No. 6s, is an appeal
from the same court No l4t, Rowland ct al.
plaintiffs in error, Us. The City Bank of New Or
leans, defendants in error; this case is an appeal
from the Supreme Court OF Louisiana. In Nos
81 and 6s, Mr.. Webster appears for plaintiff, and
Messrs. Goodrich and Hale, of New III impsh re,
for defendants. la IA, Messrs. Henry Clay,
Reverdv Johnson and j.. II. Bradley, for the
plaintiffs, John Sergeant, Hale, and Goodrich,
for defendants.
At an early hour, the court room was thronged
by persons anxious to hear the arguments of the
distinguished gentlemen engaged IN these causes
At few minutes after three O'Clock, the
court was opened, and then the business o! the
day was proceeded with.
The first case IN order was:-
No 67.-Philip Peck and VIM. Bellows plaintiffs In
error John Licences and Others defendants In
In error to the Superior Court OF lndcature OF New
Statement-The defen iants In error cause writ of
attachment to be issued from the Court Of Common
Pleas, against tho plaintiffs In error, which served
estate Of the orsns defendants The Defendants
pleaded discharge in bankruptcy upon proceedings In
stitutsd 26th November ls4a. The plaintiffs below
to be levied thereon. The plaintiffs below rrjoin an
order of tho District Court, made 10Th January 1874
directing the sheriff and his deputy, Of the county Of
Cheshire to account for apd deliver to- Rowland the
issued Is joined The Court of Common Pleas rendered
judgment for tho PLAINTIFF below to BIO levied upon the
The Superior Court Of Judicature Of New Hampshire,
affirmed the judgment Of the Court of Common Pleas.
the judgments aforesaid this writ Of error is
brought and errors asngned. In March lsi5, the
parties agree to sale of the property 20 abide the event.
The plaintiffs in error make these points
l. An attachment or meone process as known to the
laws OF New Hampshire is not lien security within
the Bankrupt Statute of August l9, ls4l.
= The order stated in the RI oiuders is bar to the
further maintenance Of the suit by the plaintiffs below
Mr. WEBSTER opened the argument for the plaintiffs
the attachment in this created lien and there
lien did the same override or was superior to the
jurisdiction ofhe district court in proceedings In bank
ruptoy? Upon this point he referred h4 court to tho
opinions OF the courts below and suggested that those
opinions adverse to the opinion Of this court in
lien and It's effect, connected with this inquiry. Mr.
Webster cited ,, Story, 2 Expsrte Foster, Sd Story
of Bellows & Peck Ths first case covers point,
the second covers both He was OF opinion that when
csss u that the poncusvns.s Of the district
all the assets and claims Of the bankrupt clear
and we'll settled and to the opinion of
Christy's case Howard 3l6 Upon this statement and
the authorities cited he could rest but he proposed to
explain the law Of on mesne process By tbs
second section of the bankrupt act 1t would appear that
there was no lien for debt contemplated by its provi
sions This attachment mesne process lien in
certain but 1t does not the property in
| of general solvency This his opinion and he
thought the we'll established law but the opinions of the
State courts was the other way This attachment on
mesne was peculiar to four or I've states-a local
law and may be said that upon It, this court called
upon review the decision of state court upon its
own law But the question here was not upon State
statute or decision. but upon the construction and
meaning Of act Of Congs'G Even admitting that in
process regarded lien, yet the question:
here TO- WAS lien under the bankrupt act Of Congress
l8il Mr. w then proceeded to give history OF at
tachmept laws In ancient times, there was no such
thing known as edpias dd 'espondendum. except for
on OF s
party sueip against the dsbtors property by
de"rngas Until lately, there was no Judgment by de-
fault for recent statutes thirty
forty ago gave thsand when the party appeared
the attachment was dissolved He then proceeded to
chusetts other Eastern States and urged that in
every State the attachment mesne process vas
sardsd but security Tor the suit and an Of
The actiou that If the action discontinued,
stopped disposed Of tbs attach men the incident OF
action w.s hs hs Soa nns
the action was decided and IL any thing occurred to
take away his of action this attachment which
was based upon tho action fell to the ground, and
instantly dissolved He regarded 1t In the light OF
special ball. which was, OF course, released and dis
| charged upon the of action, as security
for which It required, being lost taken away,
Mr. Webster said he would call upon his learned broth
nothing more than establishing security for this action
this 10 not analogous TO case OF special BALI and
Why II In the latter case the action be discontinued,
the special bail released should not this attachment
bs dssoved by the discontinusnoe OF the action ne
thought that the two most analogous and
there was distinction between them, 1t was dstnc
ton without difference He put case OF an action
for test where If the party bringing the action dies,
the case is at an end and the party unde: security
released
Mr. GoopRrcH asked If this was always the case'
| MIR WEBSTER, replied that he remembered one case
where a venerable person had many years ago,
which he wished to have provided for by some act and
he got the legislature (New Hampshire think to pass
dying to come in and take certain steps which would
continue his case and 1t subject of no little mer.
riment at the bar at the time, when it was discovered
that the act of the old gentleman covered great many
cases. other peoples but not his own Except In TINS
action of tort did fall upon the death of the par
| ty He would make one other proposition and then
conclude what he had to say upon this case In Mss'a
chusetts and New Hampshire and he did not know but
1t was the same 10 Vermont there law, chat If
party suinmake attachment Of the lands and tene-
men Of the and during the proceedings under
that action the defendant die and his repreen
tatives shall come into court within certain time and
aks erain steps, that suggesting in open court that
the estate Of the deceased defendant is sum
cent to psya his debts In that the suit against the
deceased defendant is at an end and the
Immediately dissolved; and the whole estate Is taken
and follows the usual course Of insolvent estate
Farther ia furtherance Of the asme idea he had to re-
mark that In New Hampshire there Ia no admnsstra.
ton Of the property of living nsovens for purposes OF
distribution But If insolvent person dies there is
bic distribution There 10 no releasing from mort.
cages SC but there " dissolution of such attach
ing the cause Of action upon which they are basel
e thought the decision Of this court in Baldwin and
Sanders and Sturgess and which he con
sdered It unnecessary to read left the power Of the
States to pses ipsolvent laws In awkward situation,
f indeed not very difficult ons to proceed with safe
ty. But In Massachusetts, gentleman OF the BAR OF
considerable eminenc Mr. CHARLES jackson, drew and
the legislature passed insovent law in conformity
with The decisions Of this court and OF the dissenting OPT
MONS Of Judge The principle Of that law this,
that fnding himself unable pay debts go
before prothonotary-as the officer Is called or master
in chancery he In places the judge Of
the Orphans court probate judgo-snd make decla
ration to that effect viz that he IL unable to pay all his
debts and with this probate and this filed in
court all attachments upon process
pso ato dissolved He spoks Of this law the law In
Massachusetts He knew not II It the law In New
Hampshire He ced this law to show the course Of
struction and decision is that in any where inso
vency takes place, all attachments process
instantly dissolved. In New Hampshire, as he had
shown In of deceased persons was the In
the opinion Of the court below IL is admitted that when
10 nsolvent, and his avowa that he is Is made
then all attachmsnte dissolved, and propcr dstri