Taffts v. Manlove

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring.

Upon this state of facts, the several questions of law argued by the counsel arise :

One Hill, an insolvent debtor, a few minutes after 12 o’clock, p. m. of the 2d November, 1857, filed in the Clerk’s office of the District Court, his petition of insolvency, with a schedule annexed, together with an order from the District Judge staying all proceedings at the suit of his creditors against him. About three minutes after 12 o’clock of the same day, Gilman &■ Co. filed a complaint and issued an attachment against Hill, which writ was placed in the hands of the Sheriff. At five minutes past 12, the Deputy-Sheriff, with a sworn keeper, started to the store of Hill, where they arrived at ten minutes after 12 o’clock. The storehouse was a fire-proof brick building, used only as a store, and fastened in front and rear by iron shutters. The store seems to have been closed. The Deputy placed the keeper in the rear, and kept possession of the front door, so that no one could go in or come out of the store. While there—about twenty minutes after 12 o’clock, Hill and his Attorney came to the front door, when the Attorney told the Deputy that Hill had filed his petition in insolvency, and that the Judge had issued a restraining order. The Deputy-Sheriff asked the Attorney if he had any papers to show, and the Attorney said he had not. The Deputy then told Hill that he was about to break open the door of the store, when the key was given to him. He then opened the doors, entered the store, levied on the contents of it, made out an inventory, and left a keeper in charge. The writ, with a return of levy, was filed in the Clerk’s office. The order of stay of proceedings was served on the Sheriff or his Deputy. By consent of the defendants, the goods attached were sold by the Sheriff, and the money paid into the Clerk’s hands, to abide the decision. It seems to be agreed that the issuance of the attachment and its reception by the Sheriff, and his Deputy’s acts at the store before it was opened, were all prior to the filing of Hill’s petition and the order of the Judge, though the actual en[50]try, and view, and seizure, of the goods, were subsequent to the petition and order.

Upon this state of facts two propositions are made by the Appellant :

1. That the acts of the officer prior to the entry into the building, constitute a sufficient levy upon the goods in the store.