Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1869-03-26

IN the matter Of Milton McIntOSh, BuuhTuDt
at Elizabeth City, iaa lie District Of NORTH
Carolina, on The 81 dag Of MARCEL, 1869
By the case argued in this cause by D.
G. McRae, assignee Of Milton Mcintosh
and Henry Lilly as creditor of said Bank
rupt, this question is first presented !:
"Does the issuing of a writ of Fieri Facias
to the county in which the lands of the de-
PENDANT are situated, upon judgment re-
corded against such defendant in the
County Court of another county, tested of
March Term, 1861, and returnable at June
Term, 1861, of said Court, create such
lien upon the real estate of the defendant
as will be respected and enforced by the
bankruptcy Court, the said defendant hav-
ing been subsequently declared bank
rupt upon his own petition in the month
of March. 1868 ?"
1t is now settled in North Carolina that
Judgment does not create lien in favor
Of the plaintiff upon the property, either
real or personal, of the defendant, nor does
the issuing of Fieri Facias upon such
Judgment create lien. In this respect
we are governed by the Common Law. In
many of the States it is different, but it is
made so by the statutes of those States
The law is also now different in North
Carolina. It was the case long before in
this State, that if plaintiff obtained a
Judgment, issued his F'ieri Facias and the
same case to the sheriff of a county in
which the defendants property was sit
uated and the sheriff le0ied upon such
property, that such leUy related back to
the test Term of the execution and created
a lien upon the property levied on, from
the beginning of said Term, for the salts
faction of the plaintiffs debt.
But without levy the only execution
issued in this case beanie dead process
after the return DAY, Owit, the Monday OF
June Term, 1861 Subsequent to that time
the sheriff was not authorized to do any
thing by that process and if year and
day elapsed from the issuing of another
execution, the judgment became dormant,
so that 7teri facias Or other final process
could issue without revival of the same.
A Federal Court is asked to declare that
lien has been created in behalf Of the
plaintiff Lilly, and to enforce such lien by
ordering the assignee to ray to the said
plaintiff the proceeds of the sales of the
Bankrupt's property or sufficient to satisfy
his judgment
This the Court would do, if by the course
pursued by the plaintiff he had by the
laws of North Carolina acquired lien and
had preserved such lien up to the time
of the bankruptcy of the defendant. That
the plaintiff never acquired such lien
think is very clearly shown in the leading
case of Smith VS.. Spencer, Sd Iredell's
Law, page 256, and this, since the very
able and elaborate opinion of Judge Ruff
fin in that case. has been regarded as the
settled law in North Carolina.
It is unnecessary to decide the second
question propounded, as it is in effect de-
nv ho TO ho
3D.. In answer to the Sd question sub
mitted, state that the Register cannot
order or permit the withdrawal of proof
of debt after he has passed upon the same,
allowed, certified and transmitted same to
the Assignee.
Let this be certified to VIM. A. Guthrie
Resister
(Signed.) G. W. BROOKS.
District Judge.