Vance v. Cooper
Vance v. Cooper
Opinion of the Court
delivered the opinion of the Court.
This is an action of replevin, brought in the Circuit Court of Bedford, by the defendant in error, for the recovery of certain slaves, goods, wares, and merchandise, which, it is alleged, were wrongfully in the possession of the plaintiff in error.
The facts necessary to he -noticed, are-as follows: Vance, the plaintiff in error, was the Deputy Sheriff of Bedford County; and, as such, on the 21st of November, 1860, levied a judicial attachment on the property in controversy, which, at the instance of W. S. Eakin & Co., had issued from the Circuit Court of said County, at its August Term, 1860, against Jos. W. Stephens and Alonzo Murphy. Stephens, who appears
It appears, from the proof,. that Stephens, at tbe time he executed the conveyance in trust, had knowledge of the issuance of the attachment, and acted with reference to it.
Under this state of facts, the Circuit Judge charged the jury: “If the attachment had set out the property specifically to be attached, then I would say, the defendant had the superior title; but as it does not so set out the property, and the trust deed was executed and registered before the' levy, I am of the opinion, the title acquired by the trust deed, is superior to that acquired by virtue of the levy.”
The ground upon which the Circuit Judge rested his instructions to the jury, appears to have been predicated upon the language of the attachment. If it had been more specific in its description of property to be seized, he would have rulecj. the law otherwise. The attachment, in the usual form, issued “against the goods and chattels, lands and tenements of the defendant;” and we are unable to perceive how the language of the writ can make so great a difference in its effect. The former rule of construction applied to
This Court, in the case of Burnaugh el al. vs. Brooks et al., 3 Head, 392, has given a similar construction to the Act of 1835, ch. 43, and the provisions of the 9th section of that Act, are carried,
The judgment will be reversed, and a. new trial awarded.
Reference
- Full Case Name
- David R. Vance v. A. A. Cooper
- Status
- Published