
    Shaffer v. McMaken and Others.
    
      Friday, January 12, 1849.
    The lien of proceedings in attachment, instituted before proceedings in bankruptcy, rvill bind.
    APPEAL from the Allen Circuit Court.
   Perkins, J. —

Assumpsit by Solomon Shaffer against Hezekiah McMaken, Joseph G. McMaken, and William Henderson, upon a promissory note. Plea, the general issue. The cause was thrice tried in the Circuit Court, and each time .resulted in favor of the plaintiff. The verdict upon the last trial was for the defendants. A motion for a new and fourth trial was overruled, and final judgment was rendered in their favor. The following facts appear in evidence : On the 5th of December, 1842, a writ of foreign attachment issued in favor of said Solomon Shaffer against said Hezekiah McMaken, and was soon after laid upon two horses. On the 16th of April, 1843, the horses still being held under the attachment, said Hezekiah, with said Joseph G. McMaken and William Henderson, as sureties, executed to said Shaffer the note on which this suit was brought, it being given for the debt, for the collection of which the attachment was procured. The note was accepted as a settlement of the attachment suit, and upon an agreement to surrender to said Hezekiah the horses attached. They were so surrendered, and he placed them in the possession of said Joseph and William, his sureties on the note, and they enjoyed the use of them for a considerable length of time. On the 6th of March, 1843, said Hezekiah McMaken was declared a bankrupt, and Robert E. Fleming was appointed his assignee, and, as such, subsequently got possession of the horses. There was no evidence as to the time when said Hezekiah filed his petition in bankruptcy, and it need not necessarily have been more than twenty days anterior to the time of his being declared a bankrupt. The record contains all the evidence, and we have given the substance of it. We may add here that there is no proof that Hezekiah ever obtained a final discharge as a bankrupt. The Court below instructed the jury that there was no consideration for the note in this suit, unless the attachment was a on the horses surrendered when it was given, and that the attachment was not a lien on them.

H. Cooper, for the plaintiff.

We are not called upon now to decide whether, supposing the attachment not to have been a lien upon the horses, there was a consideration for the note in suit; nor whether the bankrupt law, which says’ that the property of the bankrupt shall be divested from the decree in bankruptcy, means that it shall be divested from the time of filing the petition. There is no evidence in this case of the time of filing the petition. The attachment was more than twenty days earlier than the decree in bankruptcy, and, hence, may have been before the filing of the petition. If it was not so, the defendants should have shown it, as it devolved upon them to impeach the prima facie consideration imported by the note. Regarding it, then, as we must do, that the attachment was older than the proceeding in bankruptcy, it was a lien protected by the bankrupt law, and its release was a good consideration for the note. We are aware that Mr. Justice Story, in the Circuit Court of the United States, in Massachusetts, and Mr. Justice Ware, in the District Court of Maine, decided differently, but their decisions have been overruled by the Supreme Court of Massachusetts in Devenport v. Tilton, 10 Met. 320; and bj the Supreme Court of New Hampshire, in the two cases of Kittredge v. Warren and Kittredge v. Emmerson, 1844, and by several of the inferior United States and state Courts. See 1 Kent 247, note (6 ed.). See also Savage v. Best. 3 How. U. S. 111. The weight of authority is decidedly in favor of the protection of the lien of the attachment, and it accords with our opinion of the right of the question.

Per Curiam.

The judgment is reversed with costs.. Cause remanded, &c.  