The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-09-21

schDeuts merely required the personal presence Of the
defendant. Whatever may have beeltLe common law
oetrine concerning judgments in the English Courts.
it is undoubtedly sound law andis held in the Amer
Fan Courts that both attachment and judgment liens
are creatures of Statute exclusively. Wash. Real
Prop FED 1892 p. 81. note. Cross Liens. p. lol.
The early Massschusetts laws instituted the CASTOR
# selling the debtors goods at suction. after secur
: hem BY attachment mesne process, and gave >
lea on such good, which remained valid for thirty
! lays from judgnent--See oGney's Mass Rep. p.
he. u. 5. These epaciments. with subsequent Aots
providing for registration have been enacted in man
: f the United States.
Ny FIRST impression was. that the attachments IN
Ter our garnishee process were not reached by the
bankrupt law. The Statute axes them void wher
aid after the act Of bankruptcy has been eommttei
The first thought Is that previous attachments ART
valid and that if valid for any purpose it is to salts
ffy the debt out Of the property attached. There
might seem to be reason for attaching. and Sc
curity thereby gained if the debtors bankruptcy
be main thing Intended to be guarded against. dis
{ solves the attachment. makes it Intellectual An
thsr serious consideration might be. if the judgment
Emerged in itself the original Of action and ais
the attachment that the Judgment recovered Alter the
absnkruptey could not be proved against the estate
I If by entry of Judgment the very afforded by
aw to make an attachment more efectuAl. the secu-
rity as well as tse original claim are entirely los,
his would indeed be- not the first step that costs bui
the second that ruins. The U. S. hansr law %
sls4l expressly reserved liens. mortgages and othe,
secarites. but Judge Story though, that such
clause was not requisite protect legal liens. En-
parte Foster and Cooks case, 3 Sto.. lS2 and $40
The present o. S. bankrupt law Of 1865 has no such
Saving clause, but dsselves all attachments laid with
in four months next preceding the commencement Of
Bankruptcy proceedings. Attachments previously
laid are touched by that law. since valid lien
can be destroyed by implication. Bowman Hard
hing Sc Me-. 55g. Bates vs.. Tapham. 80 Mass, $40.
Judge Story held, in the cited that the New
Hampshire attachment laws, which like those OF
Massachusetts, gave only qualified provisional liens
protected against the bankrupt law. This doe
Urine tontly denied by the Supreme Court of New
Hampshire and finally rejected in the Q. s Su-
preme Court as we'll as in til, Courts of many of the
Estates Kittredge Emerson, IA n. H., 500. and
lis n. H. 2Ss. Peck VS. Jenness. How, 6ls. and
Il aseS tlere cited lnoSe
preferred which rest on previous contract
7 gage or hypothecatisn, the common law liens
which imply actual constructive possession by the
icreditor of the articles on which he has bestowe
money. labor or material which rest the lien
general admiralty law. the mariners claim fol
swages or on statute, the lien for supplies to do
nestic vessels. Judgments such preferred claims
merely bring them to satisfaction. Although
judgment rgore gives lien in this country.
may AID in enforcing lien created by contract, stat
ate. common maritime law. By process Of law,
The title the property, to its proceeds after sale
far they required to pay the debt may be
transferred to the creditor. But admitting that the
spirit of the Lahaiua Act of ls4l should still be re
arded in constituting the presen; Statutes have been
unable to convince myself that under those Statute
md by the law of the land attachment override
he bankrupt law. A right to statute remedy i
superior to rights secured by other statute rene
lies The attachment laws in the United States Civ
ng lien are far stronger and clearer than any thai
IAN be found on our Statute books.
The arguments Of convenience and justice sre
about even in either view. What greater security
need be expected in the law that attached good
held liable tn the judgment, than that all claims
may be satisfied. pro rata, under the bankrupt law
There no especial merit in creditor who ascertain
the existence of property of the debtor which is
known to other creditors which the creditors living
n distant parts Of the country unable to reaet
with equal speed. The opportunity for an uufair
preference of creditors by the debtor confessng udg
ment taking default, is good that of defeat
ing an attachmentby going into bankruptcy. thin
be security Of attachment is held subject, l. t.
ifna Judgment and execution thereon and 2. to the
.non-intervention of bankruptcy. The first cOntin
gency iPso faeto defeats the attachment, thu
-eeond keeps it in allegiance until the question
f the bankrupts discharge is settled. If the
bankrupt does get his discharge, the attachment
evives and may be enforced prior to unsecured
claims, subsequent attachments, subsequent con
raets of the debtor. 1t the only security which
be creditor has against the debtor making way with
IBIS property before judgment. In suspending
the enforcement of Judgment secured by attach
neut under our law, l cannot doubt that the
Judgment debt may be proved against the bankrupt
the creditor desires to do But it may be that
the creditor prefers await the result and advance
his claim if the bankrupt should not be discharged
'or if the discharge may be defeated.
Besides the citations already made, the English and
American authorities this subject may be found
James U. S. Bankrupt Law, Avery and Hobbs o.
;. Bankrupt Law Cushing's Trustee Process, Oral Z
n Attachment, Story Bailments, (Beunett's, Ed
Danes Abridgment, vol. 5. After examination
hese authorities of the course of legislation and the
sw of this Kingdom. 1 of the opinion that th'
motion to dissolve should be granted, and it is
ordered.
ALFRED S. HARTwELL,
Justice Supreme Court.
Honolulu, Sept. Is, 1870.
FISHING WITH GIAST PowDER-SOme time since