The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1869-10-13
United States District Court,
et FOx, j., PREsrnrNc

"A.
Foa, j. kaler, Bowen, Merrill set forth in their
petition "that on the nth of Tuno los, with :.
view Of compelling the BANKRUPT to commence pro
eeedings in bankruptcy, or to secure their demand
asaihst her, they caused an attachment to be made
oh ther demand OF her stock In trade and that with
ia ioor months she filed he'll petition in bankruptcy
anu mas since been adjudged bankrupt; that In
making such attachments, they incurred expenses to
theSamount of Slit 49, that the same were for tho
benefit Of all the creditors, and they therefore ask
that such amount may be repaid to them, by the as
signee from the assets in his hands,"
In some cases, where the attachment OF q debtors
estate has been made in aid OF involuntary proceed
ings in bankruptcy instituted by creditors against at
party subsequently adjudged bankrupt, L have
allowed the costs attending the attachment, to be
paid from the assets OF the estate the same were
incurred by common consent for the general benefit
and the estate has thereby been preserved from
waste and secured for the assignee in the present
case there is no evdence-and 1t Is not pretended
that the attachment was made by the petitioners
with any other object or purpose than thereby to &C.
cure their own debt. No proceedings in bankrunt
cy were instituted by them or any other creditor.
and is quite manifest that the present Is the usual
ordinary case, of an attachment obtained by cred-
tor tor bis own exclusive advantage which was dis
solved and defeated by the debtor awaiting herself OF
'ne oehon' VI the bankrupt act with four months
=, vne ','..s VI 'ae a''aenmen''
., ~. soo'oA VI .ne panArup' act aec'afes
'A" e .'s"0N' SNAIL loiate pacK 10 ths COM
s.. y. sao ptoceeunss IN bankruptcy, and
that the tile to all the property and estate OF the
bankrupt, shall vest in the assignee although the
same Is then attached mesne process as the prop-
ery OF the debtor, and shall dissolve any such at
tashment made within four months next preceding
the commencement OF the said proceedings" By
ns piosis'on INC pressnt a''achmeht was dissoived
no NJ rights OF ihtei sss remained 70 the credtor'
Se"e VI pio'ec.eu ny ioreeot II. Ihere Is nothing
any Pof uon Oh tne act wnich IN terms creates or
any rights OF the attacking creditor under the
es.as ,, "nen maue "tnin iour months ne1s
p'oo0s 'ne pe''tion, anu ene "hoie sprit and par-
po'. y. INC 80 III o"ec' opposi'ion 20 any claim
ska'ns' 'ue tstate ier payment OF e1pen-
ses A''enoius SUCH an a'tachment.
auoner PROVISION Oh Tue act preferences OF cred-
Hors wthn ioar months are declared to be i9vald'
ana tne great ann anu purpose appears to nave been
TO defeat all attempts to obtain preference, whether
pfocufsuJonty py theparueso by the creditor alone
process ana attachment OF the
al such proceedings are deemed to be fraud on the
iawwhen transacted within four months OF the Pc
tton, and for this cause the creditor is compelled
70 abandon MS attachment and share with the other
creditors pro rata In the proceeds OF the estate 1t Is
quite apparent that the law never contemplated
that party should be UNIDENTIFIED, and relieved
rom the expenses he may have incurred IN ate
tempting to obtain an undue preference by his race
OF diligence against all the other creditors. Any
other construction would be an offer of reward to
creditor Who should attempt to secure his demand
BY an attainment, for Kproceedings in bankruptcy
were not instituted within four months his de.
demand would be thereby secured II proceedings
should be commenced within that time his security
would be Defeated at the cost and expense OF the
tate, and 1t must be burdened with the charges of
attempt to evads and overreach the purpose and de-
sign of the actn equal distribution of the debtors
estate. ra. a-
The bankrupt act declaring that the estate shall
vest In the assignee and that attachment made
within four months shall be dissolved am of opn-
ion that the assignee takes free and unincumbered
title to the property as though 1t had been
tached and that the expenses of the attachment by
right should and did tall upon the party who would
nave derived all the benefit from 1t II it ad rema NJ
cd In full force.
1t is claimed that the officer. by virtue Of the al
tachment he has made acquired lien upon the
property attached, and that whilst he continues to
retain the possession he may by virtue and force OF
such lien withhold the estate from the assignee un-
til payment OF his charges, and if the are paid
py the creditor, he Is subrogated to the officers
rights by force of his lien. --
In re Hourberger & al, B. r. 80. Judge Blatch-
ford decided that sheriff had lien on property at
tached by him for his fees which accrued prior to