The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1851-01-24

PRACTICAL EXPOSITION OF THE ATTACH
RAENT LAWS.

MENT LAWS.
sTo,KTos HAnnlsor RoMney tenant 10
which there is no actual Of the
the debtor alone the basis Of the attachment and
ii The sRea mus, not only take charge Of and keep
session Of hs properly attached but he %p' make %, ns
s. The use Of The word attach in the shes return is
$ s rs %
and whether they created valid attachment, on which
Every return ought to answer the point of the writ and
the whole writ to be certain to every intent
state lie fact. truly, and must not be arsumentaiivs
s. To make valid seizure Of tangible property under
fs, taeas the thing levied upon must be taken possession
SUIT for Tiuo Lots of Ground The plaintiff al
leges he brought two suits, by attachment, against
one Craddock for five lots Of ground, including the
two now sued for; and that ne recorded the at
tachmens and Sheriff's returns in the mortgage
office, etc., and after due proceedings had, Judg-
ment was rendered against Craddock, with priVi-
lege on the property attached and costs and mat
under execution issued thereon, all the property
thus attached, except the lots now claimed, was
seized and sold, leaving balance Of his Judgment
still unsatisfied During this litigation, DoWney,
he alleges had illegally possessed himself OF these
| two lots Downey was required to surrender, anu
filed his answer, admitting possession, out AYERS
he held under Harrison.
| Harrison claims the property in virtue of sale
made under mortgage by Hall the proper owner, In
1889. and Sarah Connolly became the purchaser,
in 184l; they were resold Sarah Connolly not
complying,) and Biggs purchased, who sold to the
defendant. The plaintiff traces his title back to
| He'll, under whom both parties claim. There was
judgment for defendant and plaintiff appealed.
EUsTIs, Oh. j., delivered the opinion of the
Court. " The defendant stands before us as bona
fde purchs ser, without notice, unless he can be
held to constructive notice, resulting from the
| plaintiffs attachment"
| The objection has been made that there was no
attachment of the lots, and that this is apparent
from the Sheriff's return, which is the only evil
dence except the judgments in the suits on which
the legality and validity of the attachments can be
tested The judgments, to the satisfaction of which
the plaintiff seeks to subject the property in dispute
| were rendered against Craddock lin the attach
ment suisl with privilege on the property attached
| The copies offered in evidence do not give their
| date, nor is there any evidence to fix the day on
| which they were rendered The plaintiff has not
shown that the judgments were rendered previously
to the Sheriff's sale to Sarah Connolly, which Yves
| made on the 18th October, 1S41, which he was
bound to do, to enable himself to derive any advan-
tage from the judgments adversely to the defend
| ant. An examination of the originals has relieved
Us from any consequences resulting from this view
of the facts. They both bear date the 7ih Febru-
ary, 1912, that the plaintiffs rests solely
the effects of the attachments established by the
return Of the Sheriff. The defendant and those
under whom he claims, were neither parties nor
privies to the judgments.
By the writs of attachment the Sheriff is COM
manded to seize and attach, according to law and
to take into his possession the goods and chattes
lands and tenements, rights, moneys and effects,
and credits, of the said J. N. Craddock, etc.. and
to make return of these writs and endorse thereon
the manner he will have executed them. The
only compliance with this precept appears by the
Sheriff's return. On each writ he states that he
| received the writs and attached the following de-
scrbed property, pointed out by the plaintiff, to
wit: certain lot of ground, etc." The lots in
dispute are included among those described, and
I the return concludes Served notice of this at
tachment on p Landreaux, Esq, Recorder of Mort
cages and as herein stated, the defendant residing
out of the State of Louisiana; and posted citation
and attachment to the door of the church of St
Louis, of New Orleans, in New Orleans; and to
that of the room in which this court is held; and
executed this writ in all things as the law directs
Returned February l5, lS4l."
| 1t does not appear that the lots in dispute were
vacant and unmproved; on the contrary, the re-
turn states that they were attached, with The build
ings and improvements thereon and it appears tina
| they were pointed out to the Sheriff by the plain
tiff; and from the whole compile xion of the return
it does not appear to have been made unad
tvsedly, nor that its defects were matters of mer
neglect on the part of the officer. Why was nolic
of the attachment served on the Recorder of Mort
/ cages! So unusual a mode of serving an attach
| ment could only have been done under the order {
| vgilant superintendence. In this return we fin
| a complete omission to comply with the requisition
l. L
Ached and it has every appearance of an a,temE
to avoid the responsibility of a disturbance of tn
possession of the defendant, the consequences
which would be thrown on the plaintiff, and hi
security on the attachment bond. By the return
does not appear that any seizure of the lots wa
made, or that any change of possession, real o
symboical, was even attempted no notice wa
given 10 the tenants TO attorn, act of custody o
possession was done in relation to the property b.
the Sheriff, or any one for him. Under this stat,
Il nf a.
ments, the sale to Sarah Connolly was made, unde
which the defendant holds; and the question is
presented whether there was, in fact, any attach.
ment of the lois in dispute, at the time of this SALE
at clearly results from our attachment laws, that
in cases in which there Is no garnishmen, the ac-
tua seizure of the property of the debtor is alone
the basis Of the attachment, and of the jurisdiction
of this court. Code of Practice, Art. 239 ct seq
256 and 257.
The Sheriff must not only take charge of and
keep possession of the property attached, but he
must make his return in writing, stating the man
ner in which he has executed the writ Of attach
ment. If the attachment was wrongtuy oh
tanned, the debtor il to be Unidentified for the un
lawful seizure of his properly in the bond given b,
the plaintiff. The requisition of the bond by tn,
law presupposes the injury to the debtor by tn
seizure of his property, and provides for his indem
nifty against it. The return does not state the man
ner in which the writ was executed, which the wri
itself, as well es the law, commanded the Sheri
to state The use of the word attach in the return
is no compliance with this requsition. 1t wsq tn
duty of tho Sheriff in bis return, to give his doing
D under the writ, that the Court could Judge {
!, their suhciency and whether they created vail
: attachment, which the COut Was authorized
proceed to judgment in the ease. The concluso
Of the Sheriff that he attached is not to be heedet
as he is not the Judge of the fact''
1.-THE Sheriff's return is defined to be notl
= ing else than the answer of the Sheriff touc
I'd ing that which he is commanded to do
IT, the writ. and its effect is TO inform the Cou
IL of the truth of the thing. Dalton, who Civ
H. this definition in his Writ on Sheriffs pa,
l62, remarks that the return is the most dlflicr
81 thing belonging to the Sherf's office for Il
Sheriff must be very careful and circumspect
. making these returns according TO law, both
IT, subltance and form, otherwise he shall not on
oi endanger himself to be amerced and sued for /
RI same, but he shall endamage the parties and m
lie hazard the suit itself. Every return ought to a
swer the point of the writ and the whole writ
ought 10 BE- certain to every intent, according tc
~ reasonable intentment and construction 1t IN,
state the facts truly and must not be argumentati'
Isl Gwinne on Sheriff. 453 Sswell on Sherifis, 81
BY return, in which the Sheriff sia I'd his opini
of the law, of a constructive custody was quash
and not allowed to be amended. Sewel on Sh
re ids, 1856.
by We do not think that the conclusion TO the
he turn, "and executed this writ in all things as
law Directs" remedies the defects in the be Nv
!, the return. 1t gives the opinion of the Sheriff
20 general tems on his own acts, and is liable to
70 70, objections made to the other parts of the return
ou We have held in several cases, that 10 maxi
ng valid seizure of tangible properly under feri
cas, the thing levied upon must be taken possess
We of by the officer. Fceker VS.. Billiard, Ann,
Rep. 1888 idem 1872, idem. 1885, idem $40. Gail
ice vs.. Merchants Bank, Annual Rep. 81.
We therefore conclude that the proceedings
on der the writ of 1chment in relation to these
ha