Bowman v. Harding

Appleton, C. J. By the bankrupt law of 1867, c. 176, § 14, it is provided that, as soon as an assignee is appointed and qualified, "the Judge, or, when there is no opposing interest, the register shall, by instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto; and such assignment shall relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings.” "Any such attachment” is one made within four months next preceding the commencement of proceedings in bankruptcy. It is dissolved by virtue of § 14, but no other and earlier attachment is thereby dissolved. Not being dissolved, it remains in full force. The attachments within four months being dissolved, the property attached vests in the assignee. When the attachments are made prior to that time, the debtor’s title to the property attached passes to the assignee, subject to the creditor’s lien acquired by virtue of such attachment. In the present case the lien is not dissolved by the attachment. The plaintiff therefore claims that judgment be rendered against the property attached. Kittridge v. Warren, 14 N. H., 509; Peck v. Jenness, 7 How., 612. But it is urged that there was no valid attachment, or if [562] there was one, it has been dissolved by the act of the officer, and the defendant claims to show those facts by proofs db extra. But this cannot be done. The officer is bound by his return. That shows an attachment and consequently a lien upon the property attached. The plaintiff is entitled to the judgment against the property thus shown to be attached. If this' property is ■ destroyed or the attachment dissolved in any way without fault on the part of the officer, those questions are to be hereafter determined. In the present position of the case they are not before us for adjudication. The return of the officer shows an attachment and consequently a lien upon the property attached. The plaintiff is entitled upon the record to a judgment against the specific property returned upon the writ. Whether there was an attachment or whether, being one, it has been dissolved, are questions which we are not now called upon to decide. The action to stand for trial. Kent, Walton, Barrows, Danporth and Tapley, JJ., concurred.