Corner v. Mallory

Alvey, J., delivered the opinion of the Coui’t. This was an attachment on warrant, against a non-resi ⁴⁷² dent debtor, issued on the 11th day of April, 1867, and laid in the hands of several garnishees on the day after. The garnishees appeared, on the return of the attachment, and pleaded “ nulla bona ” for themselves, and for the defendant, that he was never indebted, as alleged. At the January Term thereafter, the appellee filed in the cause a claim to the property attached, and a motion to dissolve the attachment, upon the ground that on the 2d of July, 1867, and within four months after the attachment was issued, and within four months after the institution of the proceedings on which it was founded, proceedings in bankruptcy were duly instituted against the defendant in the attachment, in pursuance of the Bankrupt Law passed and approved on the 2d of March, 1867; and that within the four months, the defendant had been duly declared a bankrupt, and that the appellee had been duly appointed and qualified as his assignee, and that all the defendant’s property had been conveyed to him, the appellee, as assignee, and that therefore the attachment ought to be dissolved.

To this claim and motion of the appellee, the appellant demurred, by which the facts alleged were admitted; whereupon the Court below overruled the demurrer,, and quashed the attachment. By the Act of Congress of 1867, entitled “ An Act to establish a uniform system of bankruptcy throughout the United States,” approved March 2d, 1867, in the fourteenth section, it is provided that there shall be assigned and conveyed to the assignee, “ all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto, and such assignment shall relate back to the, commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process, as the property of the debtor, and shall ⁴⁷³ dissolve any such attachment made within four months next preceding the commencement of said proceedings.” It is clear, we think, that the attachment in this case is mesne process, and of the character embraced by the terms of the Act; and the only question is, shall the time be so computed back, from the commencement of the proceedings in bankruptcy, as to overreach and render dissolvable the attachment. It is insisted for the appellant that the Act did not take effect in reference to such a proceeding as this, until the 1st day of June, 1867, and that the four months are not to be computed back of that day, so as to embrace this attachment, which issued on the 11th of April preceding. And in support of this position, the fiftieth section of the Act is relied on, which provides that the Act shall commence and take effect as to the appointment of officers, and the promulgation of rules, from and after the date of its approval; “ provided, that no petition, or other proceeding under this Act, shall be filed, received, or commenced before the first day of June, Anno Domini eighteen hundred and sixty-seven.” That the Act was operative for many purposes from the time of its approval is manifest, and for several most important purposes other than those mentioned in the fiftieth section, as will appear from the thirty-ninth section, in regard to what acts shall constitute bankruptcy.

But, in our view of the ease, it is immaterial, so far as the question now before us is concerned, whether we suppose the Act to have been operative from its approval in reference to all other matters than those mentioned in the proviso to the fiftieth