Andrews v. Southwick

Shaw, C. J.

The plaintiff, a deputy sheriff, having attached the goods of Little on mesne process, delivered them to the defendant, and took his receipt for them. We have not seen a copy of the receipt, but presume that it was in common form, reciting the attachment and promising to restore the goods.

Judgment was rendered in the suit in which the goods were attached, but before the expiration of the twenty four hours, when an execution could be taken out on the judgment, the debtor, on his own petition, went into insolvency; a warrant was issued to a messenger, and he had published notice thereof in a newspaper. By these proceedings and the publication of notice, before the property could be taken in execution, being before it issued, the attachment on mesne process was dissolved. The general. property being in the debtor, it vested in the assignee, and when the goods were demanded, by the plaintiff, of the defendant, it was a good answer and justification of this refusal to deliver them, that he had delivered, or was bound to deliver, them to the messenger or assignee. Bigelow v. Pritchard, 21 Pick. 169. Sprague v. Wheatland, 3 Met. 416. The first publication of notice fixes the time when the attachment is dissolved. Briggs v. Parkman, 2 Met. 258. Ward v. Proctor, 7 Met. 318. Clarke v. Minot, 4 Met. 346.

It was contended that in the present case, as the judgment was rendered before the commencement of the insolvent proceedings, a new lien was thereby created, which defeated the right of the assignee. But we think otherwise. In this Commonwealth no lien is created by the judgment itself. When goods are taken in execution, though the service is not completed, they cease to be holden by the attachment, and the right of the creditor can no longer be defeated by any proceedings in insolvency. Cushing v. Arnold, 9 Met. 26. It was supposed, however, by the plaintiff’s counsel, that this effect was given to a judgment, by force of the Rev Sts c. 90, § 25, which declare that “ if final judgment is rendered foi the plaintiff, the goods and estate attached shall be held foi thirty days after the judgment, in order to their being taken in execution.” But this is not a just conclusion. The St. of 1838, c. 163, was passed after the revised statutes, and so far as it is repugnant to them, or so far as it controls or modifies them, it repeals them. The insolvent law declares, that, in the case stated, the attachment shall be dissolved; it therefore necessarily repeals all former laws, providing that in the same case the attachment shall be continued in force.

Judgment for the defendant.