Cunningham v. Hall

69 Me. 353, 1879 Me. LEXIS 71

Opinion

Peters, J.

A composition in bankruptcy does not discharge the lien created by an attachment of the bankrupt’s property, unless the estate has been conveyed to an assignee. The reason is this: An attachment is a lien which the law cannot release except by such means as may be provided for the purpose in the bankrupt law itself. Peck v. Jenness, 7 How. 612. The only mode provided is that contained in H. S. R. S., § 5044, which declares that an assignment in bankruptcy shall relate back and vest the title of the estate in the assignee, notwithstanding the same is held under an attachment not four months old. Morgan v, Campbell, 22 Wall. 381. In such case there is no estate that the attachment can operate upon. The law in this way liberates property from attachment, and in no other way can such a result be attained. The authorities generally take this view. Sage v. Heller, 124 Mass. 213. Blume v. Gilbert, Id. 215. Storer v. Haynes, 67 Maine, 420. In re Clapp, 2 Lowell, 468. In re Chidley, L. R., 1 Ch. D. 177. Ex parte Jones, L. R., 10 Ch. (App. Cas.) 663. Bump on Composition, 18, and cases cited. Two cases have come under our observation which are opposed to this interpretation of the bankrupt law, but we are mot satisfied that the conclusion adopted by them is the correct one. Miller v. McKenzie, 43 Md. 404 (13 B. R. 406). Smith v. Engle, decided by the Iowa supreme court, 14 R. R. 481.

Plaintiff to have a judgment such as will preserve to him his security held by the trustee process.

Appleton, C. J., Walton, Barrows, Danforts and Libbey, JJ., concurred.