Page:Federal Reporter, 1st Series, Volume 6.djvu/45

 STATE OF INDIANA V. BALDWIN. 33 �negleeted to dismiss their suit, as they had agreed to do, and the defendants negleeted to have the suit dismissed, as they inight have done. The dismissal by Wilson and Wolf, after Rice had become a party to the proceeding, had no effeot on any rights which Eice had acquired. While Baldwin was not a party to the attachaient suit, he was interested in hav- ing that suit dismissed before other creditors filed under it. But he negleeted to inform the court of the payment of Wil- son and Wolf s debt, the agreement to dismiss, and the dis- position that had been made of the attached property, and Eice took the necessary steps to become an under filing cred- iter, and proceeded in the regular way to judgment on his claim. The court also found that the property which the sheriff had seized was subject to the lien of Eice's attachment, and ordered that it be sold to pay his debt. Baldwin and his Bureties are now sued because Baldwin failed to deliVer the attached property to his successor in office for execution, and the defence is an indirect attack on the order of the court- �The court could, and perhaps would, have permitted Bald- win to set up the agreement between the original attachment plaintiffs and defendants for the dismissal of the suit in oppo- sition to Eice's motion for an order to sell the attached prop- erty and have the proceeds applied to the payment of his debt. Adams v. Balch, 6 Me. 188; Draine on Attachment, § 304. But iinding that the original suit in attachment was pending on the docket, that there had been no "final adjusfcment" of it by dismissal or otherwise, was Eice bound to go further and inquire whether there was any private or outside agreement for its dismissal ? I think not. What effect it would have had if, before taking the necessary steps to become an under filing crediter, Eice had known of the payment of Wilson and Wolf's debt, and of the agreement to dismiss the suit, is not a question now before the court. The attached property was in the custody of the court for the benefit of Wilson and Wolf, and ail other creditors who saw fit to become parties to the proceeding. While t^^ case remained on the docket, unless the defendant substituted a bond for the attached �v.6,no.l— 3 ��� �