Boughton v. Crosby

47 Conn. 577 | Conn. | 1880

Carpenter, J.

The motion for a new trial must be denied.

1. Separate assignments in insolvency by the individual members of the firm, Ernest Weiss and Louis Nies, to the same assignee, of all their property, included their joint property, and conveyed to the assignee the partnership effects, and authorized him to administer the partnership estate. Collyer on Part., § 1041; 8 Parsons on Cont., 520; Harmon v. Clark, 13 Gray, 114.

2. The defendant as constable attached a horse, the property of the partnership, in a suit in favor of Virgil E. Barnum, and took the same into his possession. He then delivered the horse to Barnum to keep. The subsequent insolvency of the partners dissolved the attachment. Under these circumstances the defendant had no lien on the horse for his keeping. The expense thus incurred was a part of the cost-of the attachment. If the officer pays it he looks to the attaching creditor for reimbursement, and the creditor may present his costs, including such expense, against. th,e estate as a preferred claim. There is no occasion for a lien, ,and the law will not embarrass the insolvency proceedings by recognizing one.

3. The claim of the defendant to a lien for the expense of keeping tlie horse is not aided by the fact that he paid Barnum $16 for the keeping. Barnum had no lien against him for the keeping of the horse and could have none against the trustee. Such costs constitute, as we have said, merely a preferred claim against the estate, to be presented and allowed like other claims. So far from Barnum’s having a lien against the defendant, it was he who was liable to the defendant for his fees and expenses in attaching and holding the horse. If the defendant himself had kept the horse he could have recovered the amount of Barnum, leaving him to present the claim for the costs against the estate as attaching creditor.

The officer therefore can not stand upon any lien of his own or of Barnum.

In this opinion the other judges concurred.