Towle vs. Robinson & a.

Assumpsit, on a promise in writing, signed by the defendants, to deliver to the plaintiff, a deputy sheriff, certain articles of personal property attached as the property of Nathan B. Folsom, and deposited by him in the hands of the defendants. The case was submitted on a statement of facts.

On the 5 th of October, A. D. 1840, the plaintiff attached the property in question as the property of N. B. Folsom, upon a writ, and on tho 22d the defendants receipted for it, promising to deliver it to the plaintiff, on demand, or pay tho sum of $500. Judgment was obtained September term, A. I). 1842, and execution issued September 16th, and was delivered to tho plaintiff, who, on the next day, demanded the property attached of the defendants. They did not deliver it, and this suit was commenced on the 19th, and service made the same day upon the defendants. On the 18th of November, A. I). 1842, Folsom made a mortgage of real estate to tho defendants, to indemnify them for signing the receipt. On the 10th of August, A. D. 1842, Folsom filed a petition to he declared bankrupt. On the 25th of October, A. 1). 1842, he was decreed bankrupt, and has since received his discharge. The defendants contended that by such discharge the plaintiff and Folsom were divested of all the interest and property which either of them had in the goods attached, at the time Folsom filed his plea in bankruptcy.

It may be true that Folsom and the plaintiff are divested of all title to the goods which were attached. If the attachment was dissolved when the receipt of the defendants was executed, the property may have passed to the assignee, discharged from the lien of the attachment. But it will by no means follow that tho contract of the defendants, upon which this action is founded, is discharged also. It was founded upon a sufficient consideration when it was executed, viz., the delivery of the property to the defendants. That consideration has not failed. That contract is not discharged or affectedby the bankruptcy of Folsom. The plaintiff’s right of action was perfect before Folsom was declared a bankrupt. The security was perfected, therefore, and the case raises no question whether an attachment is dissolved by a petition and decree of bankruptcy.