Zollar v. Janvrin,

on the first of October, he could have got his repairs made so as to have opened his house in the fall or early winter.

The jury were at liberty to find as a result of the breach of the defendant's agreement, whereby the plaintiff was excluded from the occupation of the premises till the first of December, that the essential repairs made after that time prevented the profitable use of the premises till spring-such damages were the fair, legal and natural result of the injury complained of, and they are sufficiently alleged in the plaintiff's declaration. Russell v. Fabyan, 34 N. H. 225; Sedgw. on the Meas. of Dam. 65.

Judgment on the verdict.

ZOLLAR, plaintiff, v. JANVRIN.

(49 N. H. 114.)

Bankruptcy-action in review.

An action of review is a chose in action, within the meaning of the United States bankrupt law, and, in virtue of an adjudication in bankruptcy, vesta in the assignee, who, alone, may prosecute or defend it in his own name.

ACTION of review. The opinion states the case.

Hatch, for plaintiff, cited the bankrupt law of 1867, §§ 14, 20; Smith v. Brown, 14 N. H. 67; Kittredge v. Warren, id. 509; Peck v. Jenness, 7 How. 612; Ames v. Wentworth, 5 Metc. 294; Flagg v. Tyler, 6 Mass. 36.

Wood, with whom was Batchelder, for defendant, cited Gen. Stat., ch. 205, § 36; Badger v. Gilmore, 37 N. H. 463; Bell v. Bart lett, 7 id. 181; Carpenter v. Pierce, 13 id. 403; Goodall v. Batchelder, 17 id. 386; Messer v. Swan, 4 id. 481; Otis v. Currier, 17 id. 463; Burley v. Burley, 6 id. 204; Savings Bank v. Colcord, 15 id. 119; Watriss v. Pierce, 32 id. 574, 577; Gen. Stat., ch. 215, §§ 9, 11, 13,

FOSTER, J. The original writ in favor or Zollar v. Janvrin was sned out January 8, 1866, and, by virtue of it, the original defend

Zollar v. Janvrin.

ant's property was attached. The plaintiff obtained a judgment at the October term of court, 1867; but an action of review having been commenced on the 17th day of December, 1867, within thirty days after judgment in the original cause, execution was stayed, under the forty-eighth rule of court, which provides for the stay of execution upon the filing of a bond by the defendant, "conditioned to prosecute his review to final judgment, and to pay all such damages and costs as shall be adjudged against him on such review," etc. The defendant filed the requisite bond, and the attachment upon the original writ was thereby dissolved.

More than four months later, April 30, 1868, the defendant filed his petition in bankruptcy, and received his discharge on the 24th of October, 1868. He now pleads such discharge in bar of the further maintenance of the suit. To this the plaintiff replies that the bond filed under the rule was but a substitute for the security obtained by the attachment; and that said attachment having been made and said bond, which was substituted therefor, having been filed more than four months prior to the defendant's petition in bankruptcy, such a lien upon the defendant's estate is created thereby as is protected from the operation of the bankrupt act. To the plaintiff's replication the defendant demurs.

But it does not seem to be necessary, at this time, to consider the question whether the attachment on the security provided by the bond is, or is not, a lien upon the bankrupt's estate, within the proviso of the fourteenth section of the bankrupt act of 1867, which is to the effect that no mortgage, for present considerations, duly recorded and otherwise valid, shall be affected by assignment in bankruptcy; nor whether the proviso of section 20 of the same act, to the effect that a creditor having a lien upon the estate of the bankrupt shall be admitted as a creditor only for the balance after deducting the value of the property to which the lien applies, is an indication that the security provided by the bond, in this case, is a lien, protected by the bankrupt law.

Under similar provisions of the law of 1841, it was held, that a creditor, having acquired a lien by an attachment undissolved or a judgment unsatisfied, may finish his levy upon the property, and prove, as creditor, any unpaid balance; that if his lien is by attachment, made more than four months prior to the petition in bankruptcy, he may apply to the district court of the United States for leave to prosecute his suit to final judgment, in order to avail him

Zollar v. Janvrin.

self of his security; and that where the lien of a judgment has attached it cannot be defeated by the subsequent bankruptcy of the judgment debtor. Talbert v. Melton, 9 S. & M. 9; that the lien of a judgment is preserved, and, if absolute at the time the bankruptcy was instituted, it completely overrides the decree. Doremus v. Walker, 8 Ala. 194.

The second section of the bankrupt law of 1841 provided that nothing in that act contained should be construed to annul, destroy or impair "any liens, mortgages or other securities," valid by the laws of the States, respectively, etc.

Perhaps it would not be unreasonable nor inequitable to hold that, although the terms of the proviso in the fourteenth section of the act of 1867 are not so general and comprehensive as the term lien, expressed in the second section of the act of 1841, yet, taking the whole act together, and, especially, considering in the same light the fourteenth and twentieth sections, the present act may be regarded as preserving to the creditor, having a security or lien, inchoate or perfected, as full exemption from the operation of the act as was accorded to such creditor by section 2 of the act of 1841.

If such a construction be admissible, it will be found that numerous authorities, in this State and elsewhere, would seem to indicate that the lien by attachment and judgment under the State laws is fully protected.

Thus, in this State, it has been held, that an attachment upon mesne process, bona fide made, before any act of bankruptcy or petition by the debtor, is a lien or security upon property, valid by the laws of the State, and so within the proviso of section 2 of the act of 1841; that the attachment being saved by the proviso, the means of making it effectual are also saved, and the certificate of the discharge of the bankrupt cannot, when pleaded, operate as a bar to the further maintenance of the action. If so pleaded the plaintiff may reply the existence of the attachment, in which case a special judgment will be entered and execution issued against the property attached. Kittredge v. Warren, 14 N. H. 509; and see Smith v. Brown, id. 67.

It would seem to be beyond doubt that, if it be the policy of the law to protect such securities, its protection should also be extended to the case where, for the benefit of the debtor, the lien of an attachment is only dissolved by the substitution of another security. The

Zollar v. Janvrin.

law does not contemplate the discharge of a debtor from all practical liability by giving him the right of review. And if the attachment is a protected security or lien, so it would seem, should be regarded the debtor's bond, whatever may be its practical value, independent of the sureties. The creditor's right to the security afforded by the bond is in the nature of a lien to secure such judgment as may, upon review, be rendered in his favor. Peck v. Jenness, 16 N. H. 526; S. C., 7 How. 612; Ames v. Wentworth, 5 Met. 294; Clark v. Rist, 3 McLean, 494.

A lien in equity can be enforced against the assignee. Therefore, it was held, under the statute of 1841, that the proviso protecting liens on the bankrupt's property embraces all liens which are valid by State laws, although no remedy may exist in the State jurisprudence to enforce them. Fletcher v. Morey, 2 Story, 555. Both in law and equity, liens may exist without possession. Parker v. Muggridge, id. 334; and see Ex parte Kensington, 2 Ves. & B. 83.

If the bond in this case be regarded as a mere substitution of one security for another, the matter before us is not complicated by the consideration of the fact that the proceedings at bar have arisen upon an action of review. The bond was filed more than four months previous to the bankrupt's petition. Only such attachments are dissolved by proceedings in bankruptcy as are made within four months prior to the filing of the bankrupt's petition. Bankrupt Law of 1867, § 14.

But however this may be- and the foregoing remarks are to be regarded as suggestions, merely, since we do not feel called upon to pass, definitively, upon the questions thus involved-upon other considerations, we are of the opinion, that the defendant, in the present case, cannot interpose the plea alleging his discharge in bar of the further maintenance of the suit.

This is an action of review. The writ was issued December 17, 1867. A review is not pending before the suing out of the writ. Badger v. Gilmore, 37 N. H. 457; Plumer v. Fogg, 18 id. 559. And it is very clearly settled in this State, that, upon review, no matter or thing which has arisen since the judgment in the original suit can be pleaded in bar of the original action. If the verdict and judgment were originally right, nothing which has since occurred can make them wrong. A review is, in its nature, a new trial of the issues before tried between the parties, unless the court grant leave to amend the pleadings. Such leave would not avail the

Zollar v. Janvrin.

defendant. The original pleas are abandoned, and the defendant relies entirely upon matter which has arisen since the judgment was rendered against him. "We are not aware," said Mr. Ch. J. RICHARDSON, "of any new matter that can be pleaded by a plaintiff (the defendant) in review." Bailey v. Bailey, 6 N. H. 205; Barker v. Wendell, 12 id. 119. Such a plea is irregular, and is not cured or strengthened by a replication. Otis v. Currier, 17 id. 463.

There is still another obstacle in the way of the prosecution of this suit. The fourteenth section of the Bankrupt Act provides, that mortgages, under the conditions specified in the section, shall not be invalidated by proceedings in bankruptcy; but that all the bankrupt's "rights in equity," "choses in action," all debts due him or any person for his use, and all liens and securities therefor, and all his rights of action for property or estate, real or personal, and for any cause of action which the bankrupt had against any person, arising from contract or from the unlawful taking or detention of, or injury to, the property of the bankrupt, and all his rights of redeeming such property or estate, with the like right, title, power and authority to sell, manage, dispose of, sue for and recover, or defend the same, as the bankrupt might or could have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee, and he may sue for and recover the said estate, debts and effects, and may prosecute and defend all suits at law or in equity pending at the time of the adjudication in bankruptcy, in which such bankrupt is a party, in his own name, in the same manner and with the like effect as they might have been prosecuted or defended by such bankrupt."

This action of review is clearly a "chose in action," which, "in virtue of the adjudication of bankruptcy," became vested in the assignee; and thenceforth the defendant was divested of the same; and the assignee was alone empowered to sue for and recover any debts or claims of the bankrupt, and to prosecute and defend, in his own name, all suits at law or in equity pending at the time of the adjudication of bankruptcy, in which the bankrupt was a party; and, in the present case, whatever might be recovered upon the review, in the way of damages or costs, or in reduction of either, must be recovered by the assignee, for the benefit of the creditors of the bankrupt, whose rights, as well as those of the bankrupt, the assignee represents. Such being the case, this plaintiff in review VOL. VI. 60