May v. Buckhannon River Lumber Co.

Yellott, J., delivered the opinion of the Court. On the 6th of September, 1888, certain property, belonging to James A. Fritter, was taken by the sheriff under an attachment on original process issued to enforce a claim of Shryock & Co., against the said Fritter. Before this writ was issued the Buckhannon River Lumber Company, on the 29th of August, 1888, had causéd a writ of attachment to be issued against the said Fritter. In the case of Shryock & Co. the sheriff had levied on a horse, buggy, and harness belonging to Fritter, while the Buckhannon River Lumber Company had instructed the sheriff to ievy on other property belonging to said Fritter.

The Buckhannon River Lumber Company afterwards filed a petition in the Court below' alleging that, at the time when it gave instructions to the sheriff, it was ignorant of the existence of the property levied on in the case of Shryock & Co. vs. Fritter. It claims a priority of lien on the property levied on in the attachment suit of Shryock & Co. vs. Fritter, and asks the Court to pass an order giving it the advantage of such supposed priority. The Court passed an order directing that the fund created by the sale of the property in controversy should be subject to the lien of Shryock & Co. only in subordination to the lien of the attachment in the case of the Buckhannon River Lumber Company. From this order of the Court below an appeal has been taken.

If by merely issuing a writ of attachment, and placing it in the hands of the sheriff, a lien is created on all the property belonging to the person against whom the proceedings are instituted, the order passed by the Court below would he in strict conformity Avith the principles established in relation to priorities. But, as was decided by this Court in Horwitz vs. Ellinger, 31 ⁴⁵⁰ Md., 492 , “the Act of 1864, ch. 306, providing for attachments on original process, is only a remedial Act; it gives the creditor no lien, and only provides a more speedy remedy in the cases enumerated .than before existed.” It has been held in Courts of the highest authority that the only lien created by . levying an attachment, is on the property actually taken by the sheriff. This lien is merely inchoate and awaits the judgment of the Court for its consummation. Pratt vs. Law, 9 Cranch, 456 ; Morehead vs. West.

N. C. R. R. Co., 96 N. C., 362 . The authorities