Barnstable Savings Bank v. Higgins

• Decision Date: 11 February 1878
• Citation: 124 Mass. 115
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Barnstable Savings Bank v. Jonathan Higgins & others

124 Mass. 115

Barnstable Savings Bank v. Jonathan Higgins & others

Supreme Court of Massachusetts

February 11, 1878

Barnstable. Contract on a promissory note. Writ dated June 30, 1875. On the same day the property of the first named defendant was attached. On January 8, 1876, he was adjudged a bankrupt, and on August 3, 1876, obtained his discharge. On July 21, 1876, the attachment was dissolved by a bond, signed by Higgins as principal, and Calvin Snow and Franklin Gould as sureties, containing, in accordance with the provisions of the St. of 1875, c. 68, § 2, a condition obliging the sureties to pay to the plaintiff the amount of any special judgment.

In the Superior Court, at October term 1877, the plaintiff filed a motion that a special judgment might be entered for the plaintiff to enable it to proceed against the sureties on the bond. At the hearing on this motion, before Aldrich, J., the facts above set forth appeared of record or were admitted. The defendant Higgins requested the judge to rule that no special judgment could be entered for the plaintiff by virtue of the provisions of the St. of 1875, c. 68, for the reason that that statute was unconstitutional and in conflict with the bankrupt act. The judge declined so to rule, and directed that a special judgment be entered. The defendant Higgins alleged exceptions.

Exceptions overruled.

H. P Harriman, for Higgins.

J. M Day, for the plaintiff, was not called upon.

Gray C. J. Endicott & Soule, JJ., absent.

OPINION

Gray C. J.

An attachment on mesne process, made more than four months before the commencement of proceedings in bankruptcy, creates a lien on the property attached, which is preserved by the bankrupt act; and the court in which the action is pending may award such judgment and execution as are necessary to give effect to this lien, and as are authorized by the laws of the Commonwealth, and not expressly or by implication prohibited by the act of Congress. U.S. Rev. Sts. § 5044. Doe v. Childress, 21 Wall. 642. The court may therefore, after the defendant has obtained a certificate of discharge in bankruptcy, render a special judgment against the property held under such an attachment. Davenport v. Tilton, 10 Met. 320. Bates v. Tappan, 99 Mass. 376. Ray v. Wight, 119 Mass. 426.

In the case of the dissolution of such an attachment by giving bond under the statutes of the Commonwealth, and of the principal obligor's obtaining a certificate of discharge in bankruptcy, the court could not, before the St. of 1875 c. 68, render a special judgment for the plaintiff for the purpose of charging the sureties; because the condition of such a bond, under the Gen. Sts. c. 123, § 104, was only to pay the judgment recovered against the principal and which he was bound to pay, but which remained for thirty days unpaid. ...