State v. . Poor , 20 N.C. 519 ( 1838 )

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. 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 to 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 State.

PER CURIAM. Judgment to be affirmed.

Cited: Long v. Hall, 97 N.C. 293; Penland v. Leatherwood, 101 N.C. 514.

NOTE. — A crop cannot now be levied on till mature. Acts 1844; The Code, sec. 453.

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