#### ENNIS, COMMISSIONER OF INSOLVENTS, *v.*HULSE, SHERIFF.

Assignment to insolvent commissioner — sheriff’s levy — retroactive assignment.

An assignment to the commissioner of insolvents under the statute of Ohio, does not reach back of its date to cover property before levied on by the sheriff, but left in the possession of the insolvent unsold.

An assignment to a commissioner of insolvents in Ohio, has no retroactive effect, like that to *bankrupt*commissioners.

Trover. This case was submitted to the court upon the follow-owing agreed state of facts: That on the 23d November, 1832, one Jessup arrested H. Raguet, an insolvent debtor, who gave bonds for the prison limits, and was set at liberty. The 27th of the same month, Raguet, though still on the limits, confessed a judgment to N. Dike, on which execution issued, which was levied upon certain household furniture in possession of Raguet, on the 3d of December, 1832. The 14th of the same month, Raguet, yet upon the limits, was arrested on a *ca. sa.*in favor of one Eai'l. Pie was taken before *260the commissioner of insolvents, made out and delivered a schedule of the debts he owed, made oath that he had no property of any kind, but had assigned all to one McMeeken and one Ross. He then executed an assignment, in general terms, to the commissioner, of all his property, and was discharged from custody. The 29th of January, 1833, the defendant made a new levy upon other furniture in Raguet’s possession, not before taken. On the 7th of February, the commissioner of insolvents advertised according to law. The 10th February, he demanded the goods of the sheriff, who refused to deliver them up. The sheriff sold the goods first levied upon, for $¡709 871, and the goods secondly levied on, for $¡329 16. Jf, upon these facts, the plaintiff has a right to recover in whole or in part, the court shall give judgment for the price the goods sold for; Dike and the parties, having agreed that the sale should not prejudice the right to be settled in this suit. At February term, 1833, Raguet’s application was dismissed for non appearance.

Morris, for the plaintiff.

*C. J. Wright*and *Starr,*for the defendant'.

By the Court.

Without at this time going into an examination of the points argued, as to the irregularities of the proceedings by the insolvent, before the plaintiff’s conduct in his official relation to the insolvent’s effects, since the assignment to him, we feel clear in expressing our opinion upon one branch of the case before us, which we now do, because it may disengage a portion of the money in controversy from litigation, and place it, where the person having the legal right, may receive it.

The assignment to the commissioner of insolvents was made on the 14th of December, 1832. Eleven days before the assignment, they were levied on by the sheriff. Our insolvent law does not assert the retroactive principle of a *bankrupt*law. An assignment to the insolvent commissioner only transfers the property the insolvent had at its date; it is not supposed to affect any that he may have held at any time before that time. The right of the sheriff to make the first levy, therefore, it seems to us is clear. The property so taken, is not affected by the posterior assignment. As to the proceeds of the first levy, the law is with the defendant.

The questions arising out of the second levy are- of greater difficulty; and, inasmuch as the opinion just expressed will enable the judgment creditor to make the greater part of his levy available, we feel less reluctant to adjourn the residue of the case to the Court in Bank. It involves the construction of our insolvent laws, which are not very carefully worded, and it is desirable to get the opinion of *261the whole Court. As we adjourn the cause, we forbear any opinion now upon any of the points raised.



The Court in Bank did not decide the cause. It was discussed at length by *Morris,*for the plaintiff, and C. *J. Wright*and *Starr,*for the defendant, and the judges were equally divided in opinion. The cause was then continued in the county of Hamilton.