Bosworth v. Pomeroy

Mobtoit, J. When a defendant in an action has been discharged in bankruptcy, and it is made to appear that the plaintiff has an attachment of property which is not dissolved by the proceedings in bankruptcy, the plaintiff is entitled to a special judg' [295] ment, to be enforced against the property attached, and not against the person or other property of the defendant. The object of this is to enable the plaintiff to avail himself of an existing lien saved to him by the bankrupt law, and which cannot be enforced in any other way. Davenport v. Tilton, 10 Met. 320. Loring v. Eager, 3 Cush. 188. Bates v. Tappan, 99 Mass. 376. Carpenter v. Turrell, 100 Mass. 450. In this case the bill of exceptions shows that the plaintiff attached both real and personal estate of the defendants, more than four months before the institution of the proceedings in bankruptcy. The liens thus acquired are preserved for his benefit by the provisions of the bankrupt law. There is nothing to show, and it is not claimed, that the attachment upon the real estate was dissolved or lost in any way. It remains an existing lien, and entitles the plaintiff to the qualified judgment ordered in the Superior Court, without regard to the question whether the attachment of the personal property was dissolved. The evidence offered by the defendants to show that the attachment of the personal property was dissolved by the acts of the parties, was therefore immaterial. As the proper judgment was ordered, the defendants were not aggrieved by its rejection, and it is not necessary to consider whether the reason given therefor was correct. The effect of such judgment is not to determine the right of the plaintiff to levy his execution upon the personal property which the officer attached. It merely furnishes him with the means of enforcing any lien which he may have. The question whether he has, as alleged in the answer, agreed that the property might be sold to a third person, and thus dissolved the attachment and lost his lien, can, if he levies upon such property, be tried in a proper action, to which all persons interested can be made parties. Without considering the question, how far in any case the court may receive evidence, outside the record, that an attachment had been dissolved, it is decisive of this case, that the continuing lien created by the attachment of real estate justified and required the judgment ordered m the Superior Court. Exceptions overruled.