Page:Harvard Law Review Volume 5.djvu/230

214 214 HARVARD LAW REVIEW. first publication of notice of the filing of the petition in case of involuntary proceedings," but shall also " be effectual. . . to dissolve any attachment on mesne process made not more than four months prior to the time of the first publication aforesaid." x The national bankruptcy act contained a similar provision. 2 On the strength of this provision an attempt was made in 1861, in the case of Dehon v. Foster, 3 to enjoin the defendant (a Massa- chusetts creditor of a Massachusetts bankrupt), who had before the insolvency made an attachment in Pennsylvania, from prosecut- ing his action to judgment and thereby reaping the benefit of his attachment The case came up first on demurrer to the bill. It was argued exhaustively by eminent counsel on both sides, and upon careful consideration the demurrer was overruled, and sub- sequently the perpetual injunction sought by the plaintiff was granted. The case chiefly relied on by the court to support its decision overruling the demurrer was Mackintosh v. Ogilvie.* That case is obscurely reported, but apparently the defendant, a creditor, had made " arrestments " in Scotland of debts due the bankrupt there before the bankruptcy, but had not obtained " sen- tence " there till after the bankruptcy. Lord Hardwicke granted a writ of 7ie exeat to prevent the de- fendant from leaving England, as it was alleged he was intending to do in order to escape suit by the assignees, and refused to dis- charge the writ unless the defendant gave security to abide the event of the cause. Arrestment seems to be in the nature of a judicial proceeding, and to require an order of court enjoining the debtor from pay- ing his creditor till the debt due. the arrester has been satisfied. 5 If we can understand by the " sentence " referred to this order of injunction, it seems that it might well be held that the lien of the arrestment attached only from the latter date. This view is given color by the remark of the Lord Chancellor, Hardwicke, " It is then like a subsequent foreign attachment by the custom of London." And the case has generally been regarded as authority only for the point that a subsequent attachment abroad could not prevail against the assignees in an English bankruptcy. 6 1 Pub. Stat. c. 157, § 46. 2 Rev. Stat. § 5044. 8 4 Allen, 545; 7 Allen, 57. 6 Erskine's Inst., Title VI. § 2. 6 See, e.g., Phillips v. Hunter, 2 H. Bl. 402, 407 ; Westlake, Private Internat. Law, 150.
 * 3 Swanst. 365, n. ; s. C 4 T. R. 193, n. ; S. c. Dickens, 119.