Munson v. Boston, Hartford & Erie Railroad

Gray, C. J. The attachment in this case having been made more than four months before the commencement of the proceedings in bankruptcy, the lien created thereby is preserved by the bankrupt act, and the appropriate way of ascertaining the amount of this lien, and of making it effectual, is by judgment in this action. U. S. St. 1867, c. 176, § 14. U. S. Rev. Sts. § 5044. Doe v. Childress, 21 Wall. 642. Ray v. Wight, 119 Mass. 426. Even in the case of an individual bankrupt, such an action is not to be dismissed upon the commencement of bankruptcy proceedings, but may either be stayed to await the determination of the question of the debtor’s discharge in. the court of bankruptcy, or, by leave of that court, proceed to judgment for the purpose of ascertaining the amount due to the plaintiff and provable in bankruptcy. U. S. St. 1867, c. 176, § 21. U. S. Rev. Sts. § 5106. In the case of a bankrupt corporation, the bankrupt act does not restrain a creditor, who has not proved his claim in bankruptcy, from prosecuting the action to judgment, for the purpose of enforcing his lien upon the property attached, or of charging officers or stockholders who are liable for the debts of the corporation. Chamberlin v. Huguenot Manuf. Co. 118 Mass. 532. New Lamp Chimney Co. v. Ansonia Brass Copper Co. 91 U. S. 656. Although the United' States court, sitting in bankruptcy, has jurisdiction to ascertain and liquidate the amount of the lien, and to order the. property to be sold discharged of all incumbrances, yet it may elect nqt to do so; and if, before any proceedings taken in that court for that purpose, this action should be dismissed, the lien created by the attachment would be discharged, and all benefit of it lost. U. S. St. 1867, c. 176, §§ 1, 14, 20, 25. U. S. Rev. Sts. §§ 4972, 5063, 5066, 5075. Ray v. Norseworthy, 28 Wall. 128. Foster v. Ames, 1 Lowell, 313. Clifton v. Foster, 103 Mass. 233. Braley v. Boomer, 116 Mass. 527. Fickett v. Durham, 119 Mass. 159. [86] This report does not require us to consider what effect a judgment for the plaintiff may have, as a merger of his cause of action, or upon his right to prove in bankruptcy. The only question before us is whether the action should be dismissed for want of jurisdiction, and for the reasons above stated we are of opinion that it should Not be dismissed.