Hogue v. The City of Frankfort

BELLINGER, District Judge. This is a motion to dismiss the libel filed to enforce a maritime lien, based upon the petition, of O. H. Chase, claimant, who alleges that he is the assignee of the vessel proceeded against under an assignment made prior to the libel, by the owner for the benefit of creditors. It is contended in support of the motion that property in the possession of an assignee, under the insolvent act of this state, providing for such assignments, is in legal custody, and is not liable to be proceeded against in admiralty- In the late case of The James Roy, 59 Fed. 784, it is held, following repeated adjudications to the same effect, that the possession of an assignee is not that of the court having the right to supervise the conduct of such assignee and to enforce the provisions of the assignment. It is claimed, however, that the Oregon law makes the possession of the assignee that of the court in the state, for the reason that such law provides that an assignment shall have the effect to discharge any and all attachments on which judgments shall not have been taken at the date of the assignment. The idea of the claimant seems to be that, because the assignment dissolves a pre-existing attachment, this operates somehow to invest the as-signee with a relation to the court similar to that held by the officer levying the attachment, or, at least, that it establishes a different relation in that respect from that ordinarily existing. There is no reason for such contention. The possession of the assignee, and the power of the state court over him, are not in the least different under this law from what they are in those states having no such provision. The voluntary act of the debtor cannot establish a legal custody over Ms property. The dissolution of an attachment by assignment does not establish a custody, but discharges one. This law has nothing to do with the power of the court over the assigned property, but relates wholly to the matters of preference between creditors. The motion to dismiss is denied.