Stetson v. Hayden

Dewet, J.

The only point here presented is, as we understand, that arising from the peculiar character of the demand upon which the tenant’s attachment was made. That demand was in no sense a debt, or a claim for liquidated damages, but a right of action to recover damages for a misfeasance, in instituting a malicious prosecution, &c. Such being the nature of the demand, it is supposed by the tenant that it was not within the operation of St. 1838, c. 163, § 5, declaring all attachments dissolved, upon instituting proceedings in insolvency, and the transfer of the property to the assignee. But this, we think, is an incorrect view of the provisions of the statute, and one that would operate with great injustice ; as it would give a manifest preference to claims founded on torts, over those founded on contract. Every attachment, in a suit brought upon contract, it is conceded, would have been dissolved, and the attached property passed over to the assignee, for general distribution among all the creditors pro rata

But in the view taken by the tenant, the dissolution of the attachment on all suits on contracts would operate to place the property, not in the hands of the creditors generally, but to apply it exclusively, in the first instance, to one class of creditors, and those having no peculiar claims to the assets, upon the ground of having contributed to their existence by a credit given to the debtor. Such is not the language or the spirit of the statute. If a demand for damages sustained by a malicious prosecution do not entitle the party to prove his claim and take a dividend, that will not vary the rights of the party as to the attachment. Looking at the case in any aspect, we are satisfied that the demandant is entitled to recover