74 Md. 560 | Md. | 1891
delivered the opinion mf the Court..
Proceedings in involuntary insolvency, were instituted against Eorster, Clark & Co., and pending the proceedings, and before they were adjudicated to he insolvents, attachments were issued by certain creditors, and the main question is whether the attaching creditors thereby acquired a lien upon the property of the insolvent debtors; and this, turns upon the construction of sec. 11, Art. 47, of the Code, which says: “The 'estate of the insolvent shall he distributed according to the principles of equity, and no creditor shall acquire a lien by fieri facias or attachment, unless the same be levied before the filing of his petition.” The language of the last sentence, it will he observed, is “his petition,” thus showing, it is argued, that the Legislature meant, that this section should apply to cases, only of voluntary insolvency, where the application is by the petition of the
In fact, since the decision in Pinckney vs. Lanahan, 62 Md., 448, this can hardly be considered an open question. The proceeding in that case, was in involuntary insolvency, and after the filing of the petition, and before the debtors had been adjudged to be insolvents, an attachment was issued by a creditor, and the Court held that the title of the trustee in insolvency related back to the filing of the proceeding,, and was a bar to the attachment.
In Gottschalk’s Case, however, it is contended that the attachment was, in fact, issued before the filing of the petition in insolvency. But this contention can hardly be pressed, in the face of the testimony of Mr. Pry, who prepared the petition, and who says it was filed in the Clerk’s Office about eleven o’clock A. M., and this was several hours before the attachment was issued and laid in the hands of the garnishees.
Then, again, it is insisted, that these several attachments are in no manner affected by the adjudication in insolvency, because the adjudication, it is said, was made with the consent of the debtors, and in pursuance of an agreement between them and the petitioning creditors, whereby the latter were not to object to their-' discharge in insolvency. This agreement, however, further provides, “that nothing herein contained, shall
Order affirmed.