In re Harthill ( 1871 )

BLATOHFORD, District Judge.

Irrespective of any determination of the question of fact as to the validity and bona fides of the purchase made by Henry from the bankrupt, I am entirely satisfied that the warrant issued to the marshal, in so far as it commanded him to take possession of the property which had been conveyed by-the bankrupt to Henry, transcended the power conferred on this ‘court by the 40th section of the act It should have stopped with commanding the marshal to take possession of the property of the debtor. The warrant was issued on the 17th of June, 1S68. The marshal having, under the warrant, taken the property from Henry’s possession, Henry came into this court promptly by a petition, on the 24th of June, 180S, and asked, by its prayer, that so much of the warrant as required the marshal to take possession of the property conveyed by the bankrupt to Henry, might be set aside. Such prayer must be granted, and the property so taken, or its proceeds, must be restored to Henry. He was no party to the proceedings wherein the warrant was issued, and, by presenting his petition for relief from the operation of the warrant, he does not make himself a party to the proceedings, or submit himself to the jurisdiction of the court, any further than is necessary to obtain the specific relief he asks. He is entitled to such relief, and to depart having obtained it, leaving the assignee in bankruptcy to take such affirmative proceedings against him, both in respect to the property which the marshal seized, and to the other property which was conveyed by the bankrupt to Henry, and to the proceeds of all such property, as may be proper. No such affirmative proceedings are before the court, instituted by the assignee. It is only as the result of them that he can have the relief which he now seeks by motion. Such proceedings must be taken by a pleading, making proper averments, and calling for an answer, on which an issue raised can be tried, leading to a determination which the aggrieved party can have reviewed. The proceeds of the property seized by the marshal from the possession of Henry, if they are in this court, are not in it as belonging to the estate of the bankrupt, nor can they be in it to be awarded according to the merits of the case, as between the bankrupt’s creditors and Henry, unless they are rightfully in it. They are not rightfully in it. For all the purposes of Henry’s petition, which is the only matter before the court, the property taken from Henry must be regarded as still in the possession of the marshal, it having been sold only because it was perishable, and the proceeds having been paid into court for safe keeping. The marshal’s possession of the property having been taken under a warrant which was improperly issued against such property, the property must be released from the marshal’s possession, and must revert to the possession of Henry, so far as any disposition of it on Henry’s petition is concerned. Its proceeds must take the same course. '