Page:Federal Reporter, 1st Series, Volume 3.djvu/635



1. —Under the laws of Indiana the "timely" issue of a second execution does not continue the lien cf. the first execution, in the absence of a, levy under such first execution. Appeal from the District Court.

Claypool, Newcomb & Ketcham, for appellant.

John R. Wilson, for appellee.

This is a controversy between two execution creditors of the bankrupt's estate, and it presents a very singular state of facts and questions, by no means free from difficulty, and I regret, as it is a question which arises exclusively under the law of Indiana, that there is no decision of its supreme court which throws any light upon the question.

The assignee of the bankrupt came into possession of personal property belonging to the estate, which was sold by him, and the proceeds of which are now in his hands.

At the time of the bankruptcy there were executions against the bankrupt, issued out of the courts of the state, which it is claimed were liens upon the property, and the assignee holds the proceeds subject to the claim of one of the creditors.

I will state briefly the facts which give rise to this controversey : On the eighteenth of October, 1877, English issued an execution on a judgment which he had obtained against the bankrupt, and placed the execution in the hands of the sheriff of Marion county. This execution, under the law of the state, had 180 days to run. On the sixteenth of April, 1878, when the time had expired, the execution was returned by the sheriff for renewal, without any direction from the plaintiff. On the same day—the sixteenth of April—an alias execution was issued, and was placed in the hands of the sheriff on the morning of the seventeenth of April, at half-past 9 o'clock. Kregelo, another creditor, who had obtained a Judgment against the bankrupt on the twenty-first of February,