State v. Poor, 20 N.C. 384, 3 Dev. & Bat. 384 (1839)

Dec. 1839 · Supreme Court of North Carolina

20 N.C. 384, 3 Dev. & Bat. 384

THE STATE vs. SAMUEL POOR.

Dec. 1839

To the levy oí a writ upon personal property — whether a writ of attachment or of execution — the law requires a seizure. If, in the nature of the thing, actual seizure be impossible, then some notorious act as nearly equivalentlo actual seizure as practicable, must be substituted for it. Hence, in levying, upon a growing crop, the officer must go to the premises, and there announce that he seizes the crop to answer the exigency of his writ.

This was an indictment containing two counts — the first for an assault on Joshua Cranor, as deputy sheriff, in the due execution of his office; and the second for a simple assault and battery, tried before his honor Judge Bailet, on the last circuit, at Guilford. 'On the trial it was proved that one Alfred Short, a constable, had in his hands an attachment a* gainst the property of ohe Thomas Poor, a brother of the defendant, issued on the 20th of August, 1838, by a justice of the peace, for $>29, made returnable to Guilford County Court, on the 3rd Monday of November thereafter; upon which attachment he endorsed “ levied on a field of growing corn of Thomas Poor.” This endorsement was made about 12 o’clock of the day on which the attachment issued, by the officer, without going upon or near the premises where the corn was growing; and on the same day he returned the proceedings before a justice of the peace, who entered up a conditional judgment; and at the expiration of thirty days, the officer obtained a final judgment and an order of sale, and advertised the sale to take place on the 15th of October thereafter. It was proved further that another attachment for $150, issued on the 20th of August, returnable to November County Court of Guilford county, which was on that day placed in (he hands of Joshua Cranor, who went to the same corn-field, as deputy sheriff, and levied on the corn about night, or a little after dark of the same day. It was also proved that early iu October the defendant applied to Short, the constable, for leave to gather the corn for him, and that the constable authorized him and one Samuel Irvin to gather it: that on the 10th of October, when Joshua Cranor, the deputy sheriff, was in the act of entering the field with a wagon, for the purpose of gathering the corn., he was resisted and assaulted by the defendant.

His Honor charged the jury that the levy made by Short, the constable, by virtue of the attachment in his hands, was insufficient to attach the property, and that the defendant derived no authority from the said officer to resist Cranor, the deputy sheriff. The defendant was convicted and sentenced to pay a fine, and appealed.

f'F. A. Graham for the defendant.

The Attorney General for the State.

Gaston, Judge.

We think that it was correctly held by His Honor that the constable by indorsing on the writ of attachment in the manner set forth in the case; that he had levied on the growing crop of the defendant in the attachment, did not acquire the legal possession thereof. To the levy of a writ upon personal property — whether a writ of attachment or of execution — the law requires a seizure. If, in the nature of the thing, actual seizure be impossible, then some notorious act as nearly equivalent to actual seizure as practicable, must be substituted for it. The least that can be required in the levy on a growing crop is, that the officer should go the premises, and there announce that he seizes the same to answer to the exigency of his writ. To. allow the possession and property to be transferred without a seizure —or other equivalent act — would be to, violate principle and to lead in practice to mischievous results.

This decision must be certified to the Superior Court of Law for the County of Guilford, with directions to proceed to judgment and sentence agreeably thereto, and to the laws of the Stale.

Per Curiam. Judgment t.o.be affirmed.