Opinion of the Court, per ANDREWS, J. to pay the same, and the amount due and unpaid thereon. If the plaintiff had stopped here a cause of action against the defendant Davies would appear in the complaint; but she further alleges that in November, 1872, by an agreement made by the plaintiff with the defendant Leslie, the time for the payment of the debt was extended from March 8, 1872, to October 15, 1872, "with the express understanding that the bond and mortgage should remain in every other respect unaffected by the agreement." The agreement, if construed as an absolute agreement for the extension of the time of payment of the mortgage, prima facie operated to discharge Davies from liability on his bond. It was valid and binding between the parties, and the mortgage could not be enforced during the time covered by the agreement, either by the plaintiff or by Davies. Davies, on paying the debt, would be entitled to be subrogated to the security, but he would stand in the place of the creditor, and would take the mortgage subject to the agree ment. (Ducker v. Rapp, 67 N. Y., 471; Bangs v. Strong, 10 Paige, 11.) The learned counsel for the plaintiff contends that the agreement as alleged reserves the right of the creditor against Davies. When, in an agreement between a creditor and the principal debtor extending the time of payment, the remedies against the surety are reserved, the agreement does not operate as an absolute, but only as a qualified and conditional suspension of the right of action. The stipulation in that case is treated in effect as if it was made in express terms, subject to the consent of the surety, and the surety is not thereby discharged. (Story's Eq. Jur., § 326; Bangs v. Strong, 10 Paige, 18; Kearsley v. Cole, 16 M. & W., 128; Oriental Financial Corporation v. Overend, Gurney & Co., 7 H. of L. Cas., 348; Morgan v. Smith, 70 N. Y., 537.) But we are of opinion that the agreement alleged does not bring the case within the principle of these decisions. The "understanding" that the mortgage should in all other respects remain unaffected by the agreement, except as to the time of payment, emphasizes the one purpose of the SICKELS.-VOL. XXVIII. 28 Statement of case. The agreement, viz., to extend the time of payment. other stipulations in the mortgage were to remain in force as if the agreement extending the time had not been made. It would be a forced and unnatural construction to hold that the parties designed to reserve to the creditor a right to proceed at once against Davies, which would enable the plaintiff to defeat the sole purpose of the agreement. The court in Claggett v. Salmon (5 Gill. & Jo., 314) affirmed the decree of the chancellor, who held that the extension relied upon in that case was consistent with the obligation entered into by the sureties, and the agreement expressly provided that it should not interfere with or invalide the liability of the sureties on the mortgage executed by them. The further point is taken by the plaintiff that the averment of the agreement of extension may be rejected, leaving it for the defendant to bring the agreement to the notice of the court by answer. But we think the whole complaint is to be considered in determining whether it states a cause of action, as well the allegations which tend to discharge the defendant Davies, as those which tend to charge him. These views lead to an affirmance of the judgment. Judgment affirmed. J. DAVIS DUFFIELD et al., Assignees, etc., Respondents, v. HARRY L. HORTON et al., Appellants. An assignment, in proceedings under the bankrupt act, discharges the lien of an attachment, levied within four months of the commencement of the proceedings upon property of the bankrupt; no intervention or action of the court is required. Defendants were indebted to one G. The debt was levied upon under an attachment against G. Within four months thereafter, proceedings in Statement of case. bankruptcy were instituted against G. He was adjudicated a bankrupt. Plaintiffs were appointed his assignees, and an assignment executed to them. Prior to the assignment, judgment was recovered in the attachment suit, execution issued, and defendants, without knowledge of the bankruptcy proceedings, paid the amount of their debt to the sheriff. In an action by plaintiffs, as assignees, to recover the same, held, that the assignment transferred the property as of the day of the filing of the petition; the attachment was dissolved, and the lien thereof upon the property attached discharged as of that date; that the payment to the sheriff was without authority, and did not discharge defendants' obligation; and that, therefore, they were liable. (Argued March 25, 1878; decided April 2, 1878.) APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, in favor of plaintiffs, entered upon an order reversing a judgment in favor of defendants, entered upon a decision of the court, on trial, without a jury, and directing judgment for plaintiffs. (Reported below, 10 Hun, 140.) This action was brought by plaintiffs, as assignees in bankruptcy of Charles T. Yerkes, to recover a balance alleged to be due from defendants to the bankrupt. The court found, in substance: That, on the 18th day of October, 1871, one Bouvier commenced an action against Yerkes, and on that day an attachment was issued in said action, which was served on the defendants, who were then owing Yerkes the sum of $566.96. On the 10th day of November, 1871, a petition in bankruptcy was filed by a creditor of Yerkes against him, and such proceedings. were had that, on the 13th day of December, 1871, he was duly adjudicated a bankrupt. On the 30th day of December, 1871, Bouvier recovered a judgment in his action against Yerkes, and issued execution thereon to the sheriff. On the 23d of January, 1872, the plaintiffs were appointed assignees in bankruptcy, and on the 24th of January, 1872, the register in bankruptcy executed to the plaintiffs an assignment to them of all the property, effects, etc., of said Yerkes which he had on the 10th day of November, 1871. All the Statement of case. proceedings in bankruptcy were regular, and the usual notices in such proceedings were served and published as required by that act. On the 3d day of January, 1872, the defendants, without knowledge of the bankruptcy proceedings, paid to the sheriff the sum owing by them to Yerkes. Ira Shafer, for appellants. The debt due Yerkes was the latter's personal property. (Code, §§ 463, 464.) By issuing and serving the warrants of attachment, with the usual notice, the sheriff seized or attached the property of Yerkes in the defendants' hands, and obtained a lien thereon. (Code, §§ 231-237; Russell v. Buckman, 3 E. D. S., 419, 425, 427; Rinchy v. Stryker, 26 How. Pr., 70; Frost v. Mott, 34 N. Y., 203; Holyoke v. Adams, 1 N. Y. S. C., 1; Thacher v. Bancroft, 15 Abb. Pr., 243; Rhoades v. Woods, 41 Barb., 471.) Bouvier thus obtained priority over subsequent attachments or executions against Yerkes. (M. and T. Bk. v. Dakin, 50 Barb., 587; Learned v. Vandenbergh, 8 How. Pr., 77; Burkhardt v. Sandford, 7 id., 329.) Until the judgment in favor of Bouvier was paid, the sheriff had the right to maintain an action against defendants founded upon the seizure and the lien acquired by the attachment. (Code, §§ 232, 237, sub. 4; Kelly v. Roberts, 40 N. Y., 432; Kelly v. Babcock, 49 id., 318; Duncan v. Berlin, 60 id., 151.) The lien obtained under the attachment was not discharged under the assignment in bankruptcy. (Wilson v. City Bk., 17 Wal., 473.) The payment to the sheriff, whether made with or without suit, was a valid payment, and defendants cannot be made to pay again. (Gibson v. Haggerty, 37 N. Y., 555; Holmes v. Remsen, 4 J. Ch., 460, 467; Embree v. Hanna, 5 J. R., 101; Cochran v. Fitch, 1 Sand. Ch., 142.) It was the duty of Yerkes' assignees to intervene in the State court and claim the fund. (Kent v. Downing, 44 Geo., 116; Gibson v. Green, 45 id., 209; Johnson v. Bishop, 1 Woolw., 324; Doe v. Childress, 21 Wal., 642.) The payment to the sheriff by defendants was good as against the assignees; and, if the sheriff had paid the money to the plaintiff in the execu Opinion of the Court, per ALLen, J. tion, the assignees' remedy was against him. (Broadley v. Frost, 3 Dil., 457.) Sydney S. Harris, for respondents. Plaintiffs were entitled to recover all the property of the bankrupt he had when the petition in bankruptcy was filed. (Bankruptcy Act of 1867, § 14; Miller v. Bowles, 58 N. Y., 263; Morris v. First Nat. Bl., Ct. of App., Feb. 6, 1877; Cook v. Whipple, 55 N. Y., 130; Cone v. Purcell, 56 id., 649; Stevens v. Mech. So'gs Bh., 101 Mass., 109; Miller v. O'Brien, 9 Bank. Reg., 26; Mays v. Man. Nat. Bk., 64 Penn. St., 74, 81; In re Preston, 6 Bank. Reg., 545; Doe v. Childless, 21 Wal., 642; In re Hinds, 3 Bank. Reg., 92; Edmeston v. Lyde, 1 Paige, 637; Corning v. White, 2 id., 567; Carroll v. Cone, 40 Barb., 220; 41 N. Y., 216; Bump on Bank'cy (8th ed.), 586; In re McIntosh, 2 B. R., 506; In re Covart, 3 id., 508; 1 id., 199-599; 2 id., 388; 1 id., 165, 190.) Payment by defendants to the sheriff in the Bouvier case was no defense to this action. (Richardson v. Ainsworth, 20 How. Pr., 521; Robinson v. Weeks, 6 id., 161.) The defendants had constructive notice of the bankrupt proceedings. (In re Lake, 6 Bank. Reg., 542; In re Grigg, 3 id., 131; Ex parte Vogel, 2 B. R., 138; In re Rust, 1 N. Y. L. Obs., 326, 376.) If Bouvier acquired any lien by his judgment or execution, it was subsequent to the filing of the petition in bankruptcy, and not available as against plaintiffs' title. (In re Hinds, 2 Bank. Reg., 92; Miller v. O'Brien, 9 id., 26; Doe v. Childless, 21 Wal., 642; Morris v. First Nat. Bk., Ct. App., Feb. 6, 1877.) ALLEN, J. By the proceedings in bankruptcy against Yerkes, and the assignment of his estate to the plaintiffs as his assignees, the attachment at the suit of Bouvier, under which the debt due from the defendants to the bankrupt had been seized, was absolutely dissolved. It did not require the intervention and action of the court, but by act and operation of law the assignment under the direction of the court |