282 HIGH COURT OF CHANCERY.

to place their execution upon any property of the insolvent
debtor to be found undistributed in the hands of the trustee." .

Whether this position is to be regarded as an obiter dictum
or not, it is of course entitled to great consideration; and see-.
ing that the case was decided at the same term as that of Alex-
ander and Ghiselin, with which it is supposed to be inconsist-
ent, we must presume that the enlightened tribunal by which
both causes were decided, were clearly of opinion, that nothing
decided, or even said by way of argument, in the one, was in
conflict with the other.

The conflict, certainly, is not apparent to me, nor do I see
the dangers which it is said the domestic creditors will be ex-
posed to, if property in the hands of the trustee, upon which
they have acquired liens, prior to its transfer to him is after-
wards levied upon in his hands at suit of the foreign creditor of
the insolvent. Because, although the foreign creditor may lay
his execution on property in the hands of the trustee, such levy
must be subject to the prior liens of the domestic creditor, and
any sale which may be made under such execution would pass
the property subject to the same lien, precisely as if the party
had not petitioned, and the levy and sale had been made whilst
the property remained in the hands of the debtor himself.

My opinion, therefore, is, that as this case now stands, I
cannot grant the application of the trustee of Kerr, and must
dismiss his petition, but inasmuch as the anticipated opinion of
the Court of Appeals, may present his right in a different as-
pect, it will be dismissed without prejudice to his rights here-
after to renew the application as he may be advised. The
money and funds, however, now in the hands of the receiver,
will be ordered to be brought into court to be deposited to the
credit of this cause.