the superior lien of the mortgage creditor being preserved.423 The fact that a lien has been dormant for a long period, as where the sale under an execution issued more than four months before bankruptcy was postponed, with the consent of the creditor, for a number of times, does not necessarily render it unenforceable against the trustee.

(2) GARNISHMENT PROCEEDINGS.- Garnishment proceedings instituted under a State statute against the bankrupt, based upon a judgment obtained within the four months' period are nullified,425 although the sole purpose of the defendant in filing a petition in bank

ruptcy was to avoid payment of the plaintiff in garnishment.426 An order of a court of bankruptcy relating to the moneys collected under the garnishee order is not an unauthorized interference with the process of the State court.427 Money collected under the garnishee order, issued against the salary of the bankrupt during the four months' period, belongs to the trustee, but that collected prior to such period should be paid to the judgment debtor.23 The trustee may sue to recover the money garnisheed, and the right to recover will not be affected by his failure to intervene in the action in which the judgment was obtained upon which the writ was issued.429

430

(3) BY ATTACHMENT.— (I) In general.- Here the cases under the former law are quite generally applicable. An attachment lien is within the terms of subsection c as well as subsection f,431 and is dissolved by the filing of a petition in bankruptcy by or against the

the law of Michigan, a garnishee judg ment against a bank in which the principal defendant had a deposit, does not exonerate the principal defendant from liability to the judgment creditor and can not do so until paid by the bank, it does not operate as a novation, so as to entitle the judgment creditor to the funds in the bank as against the principal defendant's trustee in bankruptcy.

Stay of execution against future salary. Where six days before bankrupt's adjudication a creditor had obtained a judgment against him upon a debt provable in bankruptcy and from which a discharge would be a release, and after adjudication levied execution against the salary of the bankrupt to the extent of 10 per cent, as authorized by the New York Code of Civil Procedure, held, that since a discharge, if granted, would relate back to the adjudication and release bankrupt from all liability on such debts as were provable and existed at that time, an order was properly granted, which enjoined the enforcement of the garnishee execution but impounded the 10 per cent until the question of bankrupt's discharge should be determined. In re Harrington (D. C., N. Y.), 29 Am. B. R. 666, 200 Fed. 1010.

Where service of the summons of garnishment was made more than four months prior to the adjudication in bankruptcy, the property in the hands of the garnishee is not discharged from the lien thereof. A judgment or decree in enforcement of an otherwise valid pre-existing lien is not the judg ment denounced by the federal statute, which is plainly confined to judgments creating liens. Citizens' National Bank v. Dasher, 34 Am. B. R. 136, 84 S. E. 482. See also under this section, ante, subtitle Judgment enforcing lien."

426. Anderson V. Billingsly (S. Dak. Sup. Ct.), 49 Am. B. R. 102, 189 N. W. 986.

427. Matter of Obergfall (C. C. A. 2d Cir.), 38 Am. B. R. 645, 239 Fed. 850.

428. Matter of Beck (D. C., N. Y.), 38 Am. B. R. 797, 238 Fed. 653.

429. Wilson v. Van Buren Co. Farmers' Mut. Fire Ins. Co. (Mich. Sup. Ct.), 34 Am. B. R. 678, 151 N. W. 752. 430. See American Digest (Century ed.), "Bankruptcy," §§ 296–305.

431. In re Higgins (D. C., Ky.), 3 Am. B. R. 364, 97 Fed. 775; In re Kemp (D. C., Col.), 4 Am. B. R. 242, 101 Fed. 689; Wood v. Carr (Ct. App. Ky.), 10 Am. B. R. 577, 73 S. W. 762; Matter of Southern Arizona Smelting Co. (C. C. A., 9th Cir.), 36

435

debtor, within four months after its date, if the debtor is adjudged a bankrupt,432 or by the confirmation of an offer of composition made by the bankrupt prior to any adjudication,433 although the case in which the attachment was issued was begun long before.134 But where a petition in bankruptcy is filed more than four months after the bankrupt's property has been attached on suits then pending such attachments constitute liens that are not invalidated by the subsequent adjudication of bankruptcy." Where, after the filing of an involuntary petition and before adjudication, a creditor attaches the bankrupt's assets, the trustee may recover the proceeds of the attachment, even though they were less than the percentage to which the creditor would have been entitled in the bankruptcy proceedings. The effect of this subdivision in dissolving attachments is not confined to those issuing from the Federal courts, but applies to the process of State courts,137 or foreign countries.438 An attachment lien is Am. B. R. 827, 231 Fed. 87; De Freice v. Bryant (D. C., Ky.), 37 Am. B. R. 275, 232 Fed. 233; Matter of Pilar Hermanos (D. C., Porto Rico), 37 Am. B. R. 405; Gray v. Arnot (N. Dak. Sup. Ct.), 35 Am. B. R. 704, 154 N. W. 268. See Am. Bankr. Dig., § 462.

An attachment, levied against stock of another corporation in the possession of the treasurer of a bankrupt corporation, within four months of bankruptcy, is dissolved and released by the bankruptcy under section 67-f of the Bankruptcy Act, and the trustee, representing the creditors and the court, can be divested of title only by a sale under order of the court, or by a disclaimer filed with its consent. Matter of Gilsonite Mines Co. (D. C., Pa.), 37 Am. B. R. 473, 236 Fed. 1015.

432. Matter of Federal Biscuit Co. (C. C. A., 2d Cir.), 32 Am. B. R. 612, 214 Fed. 221; Lehman, Stern & Co. v. Martin & Co. (La. Sup. Ct.), 32 Am. B. R. 681, 61 So. 212; Ford v. Henderson (Ore. Sup. Ct.), 43 Am. B. R. 405, 179 Fed. 558.

433. Matter of Lilienthal (C. C. A., 9th Cir.), 43 Am. B. R. 665, 256 Fed. 819.

434. In re Higgins (D. C., Ky.), 3 Am. B. R. 364, 97 Fed. 775.

Judgment antedating law.- Peck v.

436

Lumber Co. v. Mitchell, 95 Fed. 258. Contra: In re De Lue (D. C., Mass.), 1 Am. B. R. 387, 91 Fed. 510.

435. Batchelder & Co. v. Wedge (Sup. Ct., Vt.), 19 Am. B. R. 268, 80 Vt. 353; Yumet & Co. v. Delgado (C. C. A., 1st Cir.), 40 Am. B. R. 293, 243 Fed. 519.

436. State Bank of Chicago v. Cox (C. C. A., 7th Cir.), 16 Am. B. R. 32, 143 Fed. 91.

437. Matter of Federal Biscuit Co. (C. C. A., 2d Cir.), 32 Am. B. R. 612, 214 Fed. 221; Ford v. Henderson (Ore. Sup. Ct.), 42 Am. B. R. 108, 178 Pac. 381.

Where an attachment under the Porto Rican law was levied more than four months before bankruptcy, but was not perfected by judgment in the main suit until within four months of the bankruptcy, a rule to show cause, why a stay of the sale under the attachment should not be dissolved, should be discharged, and the bankruptcy should proceed in the usual manner, all rights of the attachment creditors being respected by the referee. Matter of Pilar Hermanos (D. C., P. R.), 37 Am. B. R. 405; Yumet & Co. v. Delgado (C. C. A., 1st Cir.),

40 Am. B. R. 293, 243 Fed. 519.
438. Matter of Pollmann (D. C., N.

released by an adjudication in bankruptcy, unless the court of bankruptcy shall order the lien preserved for the benefit of the bankrupt estate. 439 The effect of the nullification of the attachment is to transfer the title of the goods attached in the hands of the officer of the State court to the trustee of the bankrupt debtor. If a question arises as to the title to the goods, the trustee need not intervene in the action brought for the determination of title.440 The provisions of a State insolvency law, preferring a claim for costs incurred in an attachment, are suspended by this section. Where, under a State statute, a vendor's lien can only be enforced against property in the possession of the court, and since such possession is not acquired by the services of a summons of garnishment, a lien created by the attachment of property in the possession of a garnishee within four months of bankruptcy, is dissolved by the express provisions of § 67-f.442

443

(II) Effect upon attachment bond." While this subsection discharges the lien of an attachment, it does not vacate the writ." If

Y.), 19 Am. B. R. 474, 156 Fed. 221, holding that a lien by attachment obtained in Germany is in fraud of the act within the meaning of section 67-c (3).

The lien of a foreign attachment levied upon the property of a bankrupt anterior to the four months' period, is not divested by the bankruptcy act. In re United States Graphite Co. (D. C., Pa.), 20 Am. B. R. 573, 161 Fed. 583.

439. In re Walsh Bros. (D. C., Ia.), 20 Am. B. R. 472, 159 Fed. 560, s. C., 28 Am. B. R. 243, 195 Fed. 576; CrookHorner Co. v. Gilpin (Md. Ct. of App.), 23 Am. B. R. 350, 75 Atl. 1049, holding that both the attachments and the bond fail at the bankrupt's adjudication, and the State court cannot enter judgment for the purpose of allowing a proceeding to be maintained against the surety on the bond; Matter of Alabama Coal & Coke Co. (D. C., Ky.), 31 Am. B. R. 387, 210 Fed. 941.

440. Gray v. Arnot (N. Dak. Sup. Ct.), 35 Am. B. R. 704, 154 N. W. 268, holding that where an action is brought by the vendor of goods to recover the purchase price thereof, and an attach

ment is issued and levied on such goods in said proceeding, and within four months of the bringing of such action a petition in bankruptcy has been filed, the trustee in bankruptcy has no right or power to intervene in the action in order to gain the possession of the goods. The action being for money merely, and the lien of the attachment having been nullified by the filing of the petition in bankruptcy, such trustee cannot, by filing a petition in intervention, transform the action into one for the recovery of goods, or for the trial of the right of title thereto. 441. In re Copper King (D. C., Cal.), 16 Am. B. R. 148, 143 Fed. 649.

442. Lehman, Stern & Co. v. Gumbel & Co., 236 U. S. 448, 34 Am. B. R. 174, 35 Sup. Ct. 307, affg. 32 Am. B. R. 681, 61 So. 212.

443. See also under section 16, ante, subtitle "Attachment bonds."

444. King v. Block Amusement Co., 20 Am. B. R. 784, 126 N. Y. App. Div. 48, 111 N. Y. Supp. 102, holding that a warrant of attachment issued within four months of the filing of a petition in bankruptcy of defendant and discharged by an undertaking for which

the bond is one which in legal contemplation takes the place of the attachment lien, and gives the person in whose favor the bond is executed the right to recover on the bond without affecting the property, the annulment of the lien of the attachment does not destroy the bond. But if the bond is substituted for the property attached, the destruction of the attachment necessarily annuls liability on the bond.44

(III) Inchoate liens.- It has been held that where the lien is by attachment on mesne process made before such four months' period and followed by a judgment and levy within it, the attachment is not dissolved by subsection f.446 Prior to Metcalf v. Barker,** the weight of authority was to the contrary; indeed, it was thought that attachments so made were in the same category as those actually