| U.S. Circuit Court for the District of Kansas | Nov 15, 1873
The property or money of which the assignee, by the bill of complaint, seeks to obtain possession, is in the hands of the sheriff, and was obtained under an execution, which was issued and levied upon the property of the bankrupt before the proceedings in bankruptcy were commenced. Assuming that the bill in other respects presents a case of equity cognizance, can this court take jurisdiction of the sheriff and the fund in his hands, and subject him and the fund to its control? That this cannot be done on general principles, is conclusively settled. Peck v. Jenness, 7 How. [48 U. S.] 612; Taylor v. Carryl, 20 How. [61 U. S.] 583; Buck v. Colbath, 3 Wall. [70 U. S.] 334.
Is the rule in this respect changed by the bankrupt act? The presiding justice of this circuit has held that it is not. Johnson v. Bishop [Case No. 7,373]. And such seems to •be the opinion of the supreme court of the United States in the recent case of Marshall v. Knox, 16 Wall. [83 U. S.] 551. In the case last cited, Mr. Justice Bradley says, arguen-do, that “where an execution on final judgment has been levied by a sheriff prior to the commencement of proceedings in bankruptcy, the possession of the sheriff cannot be disturbed by the assignee; the assignee is only entitled to claim the residue in the hands of the sheriff after satisfying the execution in his hands.” In Johnson v. Bishop, supra, Mr. Justice Miller says: “The possession of the sheriff is the possession of the court, by the command of whose writ he seized the property. And so long as the proceedings in virtue of which it is taken, are pending, that possession will not be interfered with by any other court.”
The bill must, therefore, be dismissed; but it will be without prejudice to any other action or suit by the assignee against the judgment creditors of the bankrupt or either of them. Bill dismissed.