Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-27
OFFICIAL.
Opinions of the Supreme Court OF the state
Term, 1855.

% tennessee, az Nashville, Decenbe r
Term, 1855.
C. Lea vs. oerDeEs Maxwell and Others.
These are attachment bills in the CAance,v Court
al Livingston By the creditors CT Cornelius Max
WE'LL non resident debtor.
Various bills were fled by different creditors at
different times. First by C Lea; next BY George
W Gore; third by Lauier & Phillips, and lastly by
Thomas Maxwell.
A fund was produced by the sale Of several tracts
OF land and CHER properly under decree made in
these causes the same having been consolidated be-
fore the hearing.
The bin Of c. Lea was Sled and the attachment
issued upon H. and actually levied, before the bills
Of the ether creditors we're fled
But they deny him priority or any Interest in this
fund, because they alege the Shtrf made no valid.
legal return of the levy, upon The writ; and that
therefore c. Lea acquired NJ lien, if he did, 1t
has been lost by the omission Of the sheriff to make
the return.
This position is untenable. In the Grst place,
il will be found upon The examination Of the plead
ings in these causes that it is distinctly stated by
George W. Gore, Lanier < Phillips, and Thomas
Maxsell that c. Lea's attachment had been levied,
and the property placed il the custody of the law,
and it is manifestly too late now 10 make this
question in this cause
Rnt if this we're not 20, still the levy Of C. Lea
can be maintained as valid.
The attse hment bill in his favor, and the writ Of
attachment issued upon it, specifically deseribeth
land and other properly sought 10 be attached.
The writ appears lG have cone 10 the sheTif's
hands the 18Th April, 1857; ana on the 90.h Of
that month We fad By his endorsement thereon
over his own name, deputaiion to Wan. II Wilson
60 to levy on the yoke Of oxen, that | did not levy
on the 30 Of April 1857 by virtue of this attach
ment." And on the first Of May Of that year, Will
son. the Deputy, makes his return on the attachment
showing that he had levied on the oxen. AID up
on separate sheet of paper, returned with the At
tRehmeOt By the sheriff, he gives the title OF the
suit thus, "Camanda Lea rs. Cornelius Maxwell
Attachment" and then proceeds to state precisely
when the writ came to his hands, and what he had
done under it, showing that he had levied lt upon
all the property described in the attachment in this
cause issued by the Clerk Of the Livingston Chan
Gerry Court the 2Sh of April, 1851, IN the suit Of
C Lea vs. c. Maxwell and others
To this return his signature is affixed; snd imme-
distsly thereafter. on the same paper. IS endorsed
further levy the 29lh Of April, and the lst Of
May 1857, Of some things which seem % have been
omitted by the sheriff; and this is signed BY Henry
Lea, deputy sheriff.
Hamilton, the sheriff was examined as witness
aud fled bis deposition in the cause, in EhicE he
proved thst as sheriff Of Overton county, be made
the levy the the time aud in all respects stated
in The above endorsement, aud returned them with
the attachment TO the Clerk and Masters ofhee to
be fled in this cause; but from oversight emitted
10 sign his name to the return on the separate
sheet OF paper, until ne hau gone Cut OF CAcei De-
lieVing he had already done
The argument here is, that this return is void,
because not signed By the sheriff until after he had
gone out of office; snd therefore Canada Lea can |
have lien priority in virtue Of his attachment.
1t would, We think, be difficult 10 maintain this |
argument upon the face of these returns. But con-
,eding that the Sheriff could not be allowed to sign
bis return after he had gone cut Of office, and while
he cause was yet pending in court, and that the
gnRtures Of his deputies had no effect, yet 1t 5
sufficient answer to this argument to say, that the
evy being once actually mad its force and efficacy
Ould not be destroyed or impaired By the failure
# the Sheriff to make return Of it; and especially
10 in proceeding like this where the property was
described in the bill and in the writ Of attachment
md the court had proper evidence Of the levy and
proceeded to decree sale Of the properly by pr p
IT description Of it. In such the purchasers
title is complete
We do not understand the law 10 be, that where l
levy is made the creditors rights under it are de-
pendent upon the Sheriff return.
This principle think is sustained by the case Of
Mitchell vs.. Spe, Yer l79, and authorities there /
efeTred to. Jackson vs.. SterUbeTg l Johns Gas /
IS. Wheaton VS.. Sexton, Wheat. sos.
That this levy was not Impaired, we think will ap-
,ear from another consideration.
1t was the duty OF the Sheriff to levy these at
in the order Of time he received them.
his he did, and ma le the proper returns in all the
lses except that Of Canada Lea. These returns
srtainly gave the court Of Jhsneery jurisdiction
o decree a sale of the property by which tae fund
raised. Now is it possible that in the distribu-
ion Of this fund, when it that all Of these
Frts were in the hands Of the Sheriff. his deputy
t the same time, and we're actually le7iei on the
anne property, Lea's being first levied that it
an upon any just principle, be held that Canada
is to have no part in it, because the Sheriff fail
d to make return of the levy in bis favor. We
hink not The Chancellor took this view Of the
ase and we affirm his decree. WRIGHT
correct copy, J. P. CLARK, Clerk.