King v. Loudon

McCay, Judge.

The bankruptcy of the defendant, by the express and positive terms of the bankrupt act, dissolved the attachment, and the judgment thereon afterwards taken was void. We are not prepared to say that the sale of the property by the court stood upon the same footing. The property was in its custody legally. If the bankruptcy dissolved the attachment, the court was still the custodian of the property, and might, it would seem, to prevent the waste of it, order it sold and take care of the proceeds. If the defendant was, in fact, a bankrupt, on that fact being officially made known to the court, it was the duty of the court to declare the attachment dissolved; and we think the assignee a proper party to bring the fact of bankruptcy before the court. It was not proper to put him upon terms in this respect. The only object he sought was to notify the court of the bankruptcy. Ipso facto, the bankruptcy dissolved the attachment, and the only necessity for any action by the state court was to make its own records perfect. The assignee sought no, action — no judgment of the court.

We do not decide what was the effect of the sale. We incline to think it was good, if the seizure was prior to the bankruptcy. The property being in the custody of the court, it Avas its duty to take care of it until the assignee asserted his title, and a sale of it was, perhaps, the only way to preserve it. It is only to prevent Avaste that such sales on mesne process are justified. The sale in such cases is doubtless good, even though the plaintiff fail in his suit. The remedy of the defendant is on the bond. We think there was no error.

Judgment affirmed.