trine was not accepted by the courts of the States, and a sharp controversy ensued with some of them. After the death of Judge Story, the Supreme Court decided that attachments were liens.2 The law of 1841 expressly preserved all liens, eo nomine, but this was merely declaratory.3

§ 333. Statutory Right of Action. A test of the assignee's title to a statutory right of action, is, whether it is given for the benefit of all creditors or all of a designated and ascertained class, on the one hand, as actions for assessments against shareholders, or for malfeasance against directors, which the bankrupt corporation itself might have enforced; these vest in the trustees, because they are in a position to distribute the proceeds; or, on the other hand, rights given to particular creditors, such as to those who have been personally deceived, or to such as became creditors after a certain time. With these the trustees have nothing to do.5 It was held in the second circuit that a claim which the statute gave to creditors only and not to the corporation to enforce certain personal liabilities did not vest in the trustees. This is doubtful, if all creditors had the right to prosecute. It, may, however, be sustained, if the statute gave an independent right to each creditor, which he might elect not to enforce.

§ 334. Attachment on Mesne Process. - Judicial liens, as we have said, are valid against the trustees, unless excepted by statute. Attachments on mesne process are now usually dissolved, if they are recent. By the act of Congress of 1867 they were put on the footing of other preferences, and were

No. 3152; Ex parte Bellows, 3 Story, 428, Fed. Cas. No. 1278; Everett v. Stone, 3 Story, 446, Fed. Cas. No. 4577.

1 See Smith v. Brown, 14 N. H. 67; Kittredge v. Warren, ib. 509; Ames v. Wentworth, 5 Met. 294; Shaffer v. McMaken, 1 Ind. 274.

2 Peck v. Jenness, 7 How. 612. 3 See note 6, page 241.

Sawyer v. Hoag, 17 Wall. 610; Trustees Mut. Building Fund v. Bosseiux, 3 Fed. Rep. 817; Wilkins v.

Davis, 2 Lowell, 511, Fed. Cas. No. 17,664.

5 See Wilkins v. Davis, 2 Lowell, 511, Fed. Cas. No. 17,664; Dutcher v. Marine Bank, 12 Blatch. 435, Fed. Cas. No. 4203; Bristol v. Sanford, 12 Blatch. 341, Fed. Cas. No. 1893; Calhoun v. Richardson, 30 Conn. 210, 229 (note).

6 Dutcher v. Marine Bank, 12 Blatch. 435, Fed. Cas. No. 4203.

7 Peck v. Jenness, 7 How. 612; Re Paine, 17 N. B. R. 37, Fed. Cas. No. 10,673. See § 332.

dissolved by the assignment, unless they had been laid more than four months before the beginning of the proceedings in bankruptcy; and this limitation has been adopted in Massachusetts, where formerly all attachments, however ancient, were discharged.1 The dissolution will be operated, although the cause of action should be a tort not provable in the bankruptcy. The word attachment has been very liberally construed to apply to sequestrations and other similar processes at law or in equity.3

Liens by attachment or judgment were dissolved by one of the early statutes in England, unless there had been a levy or seizure upon the execution. The law of England of 1883 is substantially similar, except that if bankruptcy occurs within fourteen days after a sale of goods on execution, and notice is given the sheriff he is to pay the net amount to the trustee or receiver.5

That a rule of this sort, giving the right to dissolve for a certain time after the levy of execution is useful was said by CURTIS, J., delivering the opinion of the Supreme Court."

The dissolution of judicial liens being a result of the vesting order, an arrangement by composition or otherwise, by which the proceedings are dismissed without such an order, will not discharge the creditor's lien. But if the decree is made, the officer will be protected in obeying it, though the proceedings

1 Act of 1867, § 14, 14 St. 522; Rev. Stat. § 5044; Pub. Sts. (Mass.) c. 157, $46. See Act of 1898, § 67; infra, § 530. 2 Stetson v. Hayden, 8 Met. 29; Codman v. Freeman, 3 Cush. 306; Shelton v. Codman, 3 Cush. 318; Grant v. Lyman, 4 Met. 470.

3 Smith v. Gordon, 6 Law Rep. 313, Fed. Cas. No. 13,052; Trow v. Lovett, 122 Mass. 571; Ex parte Hughes, L. R. 12 Eq. 137; Ballin v. Ferst, 55 Ga. 546; Re Joslyn, 2 Biss. 235, Fed. Cas. No. 7550.

151.

4 21 Jac. 1, c. 19, § 9.

5 46 & 47 Vict. c. 52, §§ 45-47. Buckingham v. McLean, 13 How.

7 Ex parte Sheriff of Middlesex, L. R. 12 Eq. 207; Crew v. Terry, 2 C. P. D. 403; Re Chidley, 1 Ch. D. 177; Ex parte Jones, L. R. 10 Ch. 663; Re Bestwick, 1 Ch. D. 702, 2 Ch. D. 485; Re Clapp, 2 Lowell, 468, Fed. Cas. 2785; Re Scott, 15 N. B. R. 73, Fed. Cas. No. 12,519; Re Shields, 4 Dill. 588, Fed. Cas. No. 12,784; Cutter v. Gay, 8 Allen, 134; Hill v. Keyes, 10 Allen, 258; Sage v. Heller, 124 Mass. 213; Cunningham v. Hall, 69 Maine, 353; Re Irons, 18 N. B. R. 95, Fed. Cas. No. 7067; McGehee v. Hentz, 19 N. B. R. 136, Fed. Cas. No. 8794.

should be afterwards dismissed for any cause, unless, possibly, entire want of jurisdiction apparent on the face of the proceedings.1

§ 335. Attachment of Firm Property. An attachment of the joint property of a firm for a partnership debt is not dissolved by the bankruptcy of one or more of the partners less than all,2 but since the bankruptcy of one partner will dissolve the partnership, and since the debts and assets are marshalled in the same way, whether one or more partners are bankrupt, an attachment of joint property made after the bankruptcy of one partner will not be valid.

A joint bankruptcy, of course, dissolves separate as well as joint attachments; and separate bankruptcies of all the partners has a like effect, because in both these cases the whole property joint and separate of all the partners is vested in the assignees.

§ 336. Levy on Execution. Actual seizure or levy upon execution before the bankruptcy creates a lien if none is given by statute or common law, or confirms and renders indissoluble the lien of an attachment or judgment, unless the bankrupt law expressly deals with such seizures, but the mere entry of judgment does not have this effect unless the judgment itself creates a lien.5

Demand upon a garnishee or receiptor is equivalent to seizure. But a demand for specific chattels is not equivalent to seizure when they are not in the hands of a receiptor or of some one legally bound to deliver them to the judgment creditor on demand. If, however, the creditor has been pre

1 Penniman v. Freeman, 3 Gray, 245; Smallcombe v. Olivier, 13 M. & W. 77.

2 Fern v. Cushing, 4 Cush. 357; Brickwood v. Miller, 3 Meriv. 279; Mason v. Warthen, 14 N. B. R. 346; Ex parte Isaac, L. R. 6 Ch. 58.

8 Barker ". Goodair, 11 Ves. 78; Dutton v. Morrison, 17 Ves. 193; Re Wait, 1 Jac. & W. 605.

4 Cushing v. Arnold, 9 Met. 23; Hall v. Crocker, 3 Met. 245; Marshall

v. Knox, 16 Wall. 551, 559, per Bradley, J.; Wilson v. City Bank, 17 Wall. 473; Nason v. Hobbs, 75 Maine, 396; Re Shirley, 9 Fed. Rep. 901; Epperson v. Robertson, 91 Tenn. 407. See infra, § 530.

5 Andrews v. Southwick, 13 Met. 535; Butler v. Mullen, 100 Mass. 453.

6 Franklin Bank v. Bachelder, 23 Maine, 60; Parks v. Sheldon, 36 Conn. 466; Storer v. Haynes, 67 Maine, 420. 7 Beers v. Place, 36 Conn. 578.

vented from seizing by the injunction of the court of bankruptcy, his lien will be preserved in that jurisdiction.1

When

§ 337. Dissolution of Attachment; Creditors' Rights. the statute dissolves attachments upon the property of the bankrupt, it would seem to follow that if the debtor after an attachment has been laid but before his bankruptcy has sold the attached property, the creditor should have the right to pursue his remedy against what is now the property of a third person. But in Massachusetts the assignment purports to convey whatever property or estate could be taken on an execution against the bankrupt, and property which has been attached while his can be so taken, and therefore goes to the assignees. And the assignees by the statute may prosecute an action by subrogation to the rights of an attaching creditor, and realize the value of the attachment for the general benefit.3 Where the bankrupt has merely incumbered the property subject to the attachment, the equity belongs to the trustees, and the courts have permitted them to have this subrogation without an express statute authorizing it.*

If an attachment is dissolved the assignees are not bound to appear in the attachment suit and ask relief, and, indeed, in most courts would have no standing to do so. The title to the attached property is changed, and if the creditor levies upon it, though without actual notice of the bankruptcy, he must refund to the assignees and prove in the bankruptcy.5

§ 338. Qualified Judgment, when Attachment not Dissolved. — If the attachment from its age or for any other reason is not discharged, the plaintiff may have a qualified judgment against the attached property, notwithstanding the debtor's discharge.

1 Davis v. Stitzer, 19 N. B. R. 61, 716; Re Steele, 16 N. B. R. 105 Fed. Fed. Cas. No. 3654. Cas. No. 13,345.

2 Parsons v. Merrill, Met. 356; Day v. Lamb, 6 Gray, 523; Act of 1898,

§ 70 a (5). Infra, § 533.

5 Bracken v. Johnston, 15 N. B. R. 106, Fed. Cas. No. 1761; Bradley v. Frost, 3 Dillon, 457, Fed. Cas. No. 1780;

3 Pub. Sts. (Mass.), c. 157, § 47. Act Bosworth v. Pomeroy, 112 Mass. 293; of 1898, § 67 f. Infra, § 530.

4 Re Nelson, 9 Ben. 238, Fed. Cas. No. 10,100; Re Klancke, 4 N. B. R. 648, Fed. Cas. No. 7864; Re Badenheim, 15 N. B. R. 370, Fed. Cas. No.

Duffield v. Horton, 73 N. Y. 218.

Ingraham v. Phillips, 1 Day, 117; Peck v. Jenness, 7 How. 612; Davenport v. Tilton, 10 Met. 320; Kittredge v. Warren, 14 N. H. 509; Stoddard v.

$339. Bond to Dissolve Attachment. If a statutory bond to dissolve an attachment has been given by a defendant, conditioned to pay the judgment when obtained, and the defendant is discharged in bankruptcy so that no personal judgment can be obtained against him, but the attachment was so old as to be indissoluble, several courts have held that they could enter a special judgment against the sureties, though the defendant should receive his discharge. This was not the law of Massachusetts 2 until an amendment was made in the statute. The statute was held not to apply to a discharge by composition when there had been no assignment, and the attachment was made within four months of the proceedings in bankruptcy.1

§ 340. Attachment; Receiptor. If the attached property is restored to the debtor upon his procuring a receiptor who undertakes that the property shall be forthcoming to answer the judgment, and the attachment is dissolved by the decree, the receiptor is discharged. If the attachment is not dissolved, the property is not discharged excepting as to bona fide purchasers, and the receiptor is liable, and has an equity to require the property to be applied to the attaching creditor's debt. In one interesting case a creditor attached joint property for the debt of one of the partners, and the firm became bankrupt more than four months afterwards; but it was proved that the partnership debts exceeded the whole value of the joint property and the court held that a receiptor was not liable, because the attachment, in law and equity, bound only the debtor's share of the surplus.7 Locke, 43 Vt. 574; Bates v. Tappan, 99 Mass. 376; Batchelder v. Putnam, 13 N. B. R. 404, 54 N. H. 84; Alsop v. White, 45 Conn. 499; Walters v. Oyster, 1 Cent. Rep. 557 (Pa.).

1 Re Albrecht, 17 N. B. R. 287; Fed. Cas. No. 145. See Holyoke v. Adams, 10 N. B. R. 270; s. c. 59 N. Y. 233; Zollar v. Janvrin, 49 N. II. 114.

2 Carpenter v. Turrell, 100 Mass. 450; Hamilton v. Bryant, 114 Mass. 543; Braley v. Boomer, 116 Mass. 527; Johnson v. Collins, 117 Mass. 343.

4 Denny v. Merrifield, 128 Mass. 228. 5 Sprague v. Wheatland, 3 Met. 416; Butterfield v. Converse, 10 Cush. 317; Lindner v. Brock, 40 Mich. 618; Kaiser v. Richardson, 14 N. B. R. 391; Shumway v. Carpenter, 13 Allen, 68; Lewis v. Webber, 116 Mass. 450; Wright r. Dawson, 147 Mass. 384; Wright v. Morley, 150 Mass. 513.

6 Batchelder v. l'utnam, 13 N. B. R. 404, 54 N. H. 84; Alsop v. White, 45 Conn. 499; Lamprey r. Leavitt, 20 N. II. 544; Rowe r. Page, 54 N. H.

3 Barnstable Savings Bank v. Ilig- 190. gins, 124 Mass. 115.

7 Lewis v. Webber, 116 Mass. 450.