Haley v. Thurston

60 N.H. 204

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1880
• Status: Published

Opinion

Allen, J.

The debtor, whose goods the defendant’s deputy attached upon mesne process, filed his petition in bankruptcy within four months after the attachment, and no proceedings have been had upon the petition since. The mere filing of a petition in bankruptcy did not divest the debtor of his title to the property, nor dissolve attachments made upon it within four months prior to the filing. Though the assignee’s title relates back to the commencement of the bankruptcy proceedings, he takes his title by virtue of an appropriate deed, and until the assignment is made no lien existing when the proceedings commenced could be dissolved. It is the assignment, and not the filing of the petition, that dissolves an immature attachment. Rev. Stats. U. S., s. 5044; Hampton v. Rouse, 22 Wall. 208, 278. In this case the question oi the dissolution of the attachment by the bankruptcy proceedings can have no effect, for the plaintiff’s lien by attachment was lost at the end of thirty days after the judgment, and the bankrupt’s petition had not then been filed. So far as the plaintiff’s rights were concerned, there was no attachment to be affected by a petition in bankruptcy. The defendant’s deputy, having received an execution on a judgment obtained by the plaintiff, with instructions to levy upon the property attached, neglected to do so. Having a good receipt for the property, he made no demand upon the receiptor, and took no steps whatever to have the execution satisfied. He offers no excuse for his want of diligence. The attachment lien existed at the time, and by the deputy’s neglect the plaintiff has lost his remedy upon the attached property, and for this neglect the defendant is liable.

Judgment on the verdict.

Foster, J., did not sit: the others concurred.