Barron v. Boyd , 1 Thomp. & Cook 457 ( 1873 )

Talcott, J.

The defendant, as sheriff of Steuben county, seized and took in execution the piano of the plaintiff, by virtue of an execution against the plaintiff, regular on its face and issued by a court of competent jurisdiction. He was not bound to look beyond his process, and whatever may have been the effect of the bankruptcy proceedings upon the judgment on which the execution was issued, the officer is protected against an action. Orange Co. Bank v. Dubois, 21 Wend. 351; Ruckman v. Cowell, 1 N. Y. 505; Crocker on Sheriffs, 220.

This rule applies as well in an action of replevin as in other actions. Webber v. Gray, 24 Wend. 485; Bullis v. Montgomery, 50 N. Y. 352.

It is claimed that the piano was exempt from levy and sale upon a debt existing previous to the bankruptcy by reason of its having been set apart to the plaintiff as a bankrupt by the assignee under the provisions of the bankrupt law.

But this the sheriff could not know. It is not described as exempt in any statute. It seems to us that the case is brought within the principle of the cases before cited.

In Ruckman v. Cowell, supra, which was the case of a levy upon the effects of a bankrupt after his discharge, the court, by Judge Bronson, says: “ As the execution was regular on its face, and issued from a court of competent jurisdiction, it was a protection to the officer who made the levy, but it could not justify the party at whose instance it was issued. He acted at his peril. It is true that he may have been ignorant of the discharge, but that was his misfortune.” In such a case as this we think the remedy of the bankrupt to have the levy discharged is by application to the court as is held in the case of The Orange Co. Bank v. Dubois, supra, or to the court in bankruptcy.

The State courts, it is to be presumed, will take care that- their process does not come in conflict with the bankrupt law, as in the case of this very piano, as to which a levy was set aside by this court.

The judgment must be affirmed.

Judgment affirmed.