Page:Federal Reporter, 1st Series, Volume 9.djvu/918

 IN BE SHIRLEY. 903 �release and deliver up or have sold in the manner here contemplated, in order to prove any part of its debfc ? The question seems to be new; at least, counsel have referred me to no decision upon it. It is Mot met hy any of the cases cited by the register. I have nowhere found the precise point discussed, except in the treatise of Avery & Hobbs on the Bankrupt Law of the United States, at page 160, where it is said: "If he [the crediter] has a judgment and execu- tion, he may finish his levy if his lien attached absolutely before bankruptcy, and, after applying the proceeds, he may be permitted to prove any unpaid balance." �The present is not a case of judicial proceedings commenced, or an execution sued ont, after bankruptcy. When the jurisdiction of the bankrupt court attached, the goods were already rightfully in the cus- prevent a sale by the sheriff the interposition of this court was invoked, but the injunction sought was refused, and the temporary restraining orders which had been granted were dissolved. It is, therefore, quite inaocurate for the creditors opposing the proof to assert that the Eaton, Cole & Burnham Company sold the goods at sheriff's sale "in open disregard of the bankruptcy proceedings." It may be that the refusai to enjoin, and the dissolution of the restrain- ing orders, cannot be interpreted as equivalent to a direct permission by this court to the company to sell upon its^. fa.; but we may assume the court was satisfied that the execution was not impeachable as an unlawful preference, and that no good reason existed for its inter- ference. The goods then being lawfully held by the sheriff, by virtue of execution process from another tribunal, how could the bankrupt court undertake to direct the. manner of sale? The law regulated that. The case, therefore, as it seems to me, is not within the pur- view of the prohibitory clause of the bankrupt act relied on for excluding proof of this claim. �Moreover, the difficulties in the way of the Eaton, Cole & Burnham Company complying with the requirements of section 5075 would seem to have been insurmduntable. The company was not the sole execution creditor, and hence could not control the proceedings, There were in the sheriff's hands at least two other executions — one prier and one junior — in respect to which this creditor was power- less. �Again, the sheriff having aetually levied upon the goods before bankruptcy, the case did not stand on the footing of a mere lien. By virtue of the seizure the legal title to theproperty vested in the sher-' ��� �
 * ody of the law; a circumstance, I think, of controlling weight. To