Denny v. Merrifield

128 Mass. 228 | Mass. | 1880

Gray, C. J.

The U. S. St. of June 22, 1874, § 17, allows a creditor, holding collateral security for his debt, to share in the proceedings of composition, only to the excess of the debt above the security, or upon surrendering the security for the benefit of the estate; and makes the composition binding upon all debts, whether secured or unsecured, which are duly described in the statement of the debtor, and are of such a nature that they would be barred by a certificate of discharge in bankruptcy. Mudge v. Wilmot, 124 Mass. 493. Leggett v. Barton, 11 Vroom, 83. The composition, followed by payment or tender of the sums due according to it, therefore discharged the defendant from personal liability to the plaintiff, and the plaintiff is not entitled to a general judgment.

As no assignment in bankruptcy was ever made, the proceedings did not discharge the plaintiff’s attachment, and would not have prevented the plaintiff, if the property attached had remained subject to the lien created by the attachment, from taking special judgment against that property for the purpose of giving effect to that lien. Ray v. Wight, 119 Mass. 426. Sage v. Heller, 124 Mass. 213. Alsop v. White, 45 Conn. 499.

But the attachment having been dissolved and the property surrendered to the defendant upon his giving bond for the payment of any judgment recovered in the action, the property attached is no longer bound by the attachment, and consequently no special judgment against the property can be entered.

The remaining question is,, whether a special judgment can be given for the plaintiff for the purpose of charging the sureties on that bond. If the bond had been in the ordinary form of a bond to dissolve an attachment, such as was in use in this Commonwealth before the passage of the St. of 1875, c. 68, no such special judgment could have been rendered. The plaintiff’s rights, therefore, depend upon the construction of this statute. Barnstable Savings Bank v. Higgins, 124 Mass. 115, and cases cited.

Proceedings for a composition under the act of Congress of 1874 may be had at any time after the filing of a petition in bankruptcy, “ whether an adjudication in bankruptcy shall have been had or not; ” and, as already stated, do not, unless there has been an assignment in bankruptcy, dissolve attachments, though made within four months before the filing of the. petition. The St. of 1875, c. 68, passed nine months later, authorizes the entry of a special judgment, for the purpose of charging the sureties on a bond given to dissolve an attachment, only in cases in which both the defendant “ has already been or afterwards is adjudged a bankrupt,” and the attachment is “ not made within four months next preceding the commencement of proceedings in bankruptcy.” This statute cannot, consistently with its explicit provisions, be construed to include cases like that before us, in which there has been no adjudication of bankruptcy, nor assignment in bankruptcy, nor attachment made more than four months before the films' of the petition.

If we were sitting as legislators, we might yield to the suggestion that the reasons are no less strong for allowing such a special judgment to he entered in every case in which proceedings in bankruptcy are had for the distribution of a debtor’s property among his creditors and for his discharge from his debts by way of composition, than in the case in which he is adjudged a bankrupt and the subsequent proceedings are in the ordinary form; and in a case in which the attachment, though' made within four months before the commencement of proceedings in bankruptcy, fails to be dissolved because no assignment in bankruptcy is made, than in one in which, notwithstanding such an assignment, the attachment remains in force because made more than four months before the commencement of such proceedings. But, sitting as judges, we cannot extend the statute by construction to cases which, though they may appear to be within its reason, do not satisfy the conditions clearly prescribed and defined by its language. Jacob v. United States, 1 Brock. 520. Denn v. Reid, 10 Pet. 524, 527. Putnam v. Longley, 11 Pick. 487, 490. Judgment for the defendant.^*

* A similar decision was made on the same day in Bristol in the case of

J. F. Comstock & others vs. Jathniel C. Peck.

Contract for goods sold and delivered. Writ dated March 19, 1878, returnable to the Superior Court. An attachment was made the same day, which was dissolved two days afterwards by the defendant giving a bond with sureties, containing the condition prescribed by the St. of 1875, c. 68. On March 28, 1878, the defendant filed a petition in bankruptcy, and was adjudged a bankrupt; but no assignee was appointed, and subsequently a resolution of composition with the creditors was adopted by the creditors, and duly recorded; but the plaintiffs took no part in these proceedings. The creditors other than the plaintiffs were paid according to the terms of the composition, and the amount <|ue the plaintiffs thereby was tendered to them. At March term 1879, Allen, J., on motion of the plaintiffs, ordered a special judgment to be entered for them; and the defendant alleged exceptions.

W. H. Fox, for the defendant.

E. H. Bennett Sf W. E. Fuller, for the plaintiffs.

Gray, C. J. In this case, argued while that of Denny v. Merrifleld, sup/a, has been under advisement, although the defendant has been adjudged a bankrupt, yet. the attachment having been made less than four months before the commencement of proceedings in bankruptcy, the case is not within the St. of 1875, c. 68. Exceptions sustained.