Claflin v. Furstenheim , 49 Ark. 302 ( 1887 )

Cockrill, C. J.

This is the second appeal of this cause. The case is stated in 47 Ark., 49. The question now relates to the validity of the levy of the appellee’s attachment.

The Sheriff had attached the property in dispute through a deputy under a writ issued by a justice of the peace before either of the attachers, who are contending for priority here, had sued out their orders of attachment, and the deputy was in the actual possession by virtue of the seizure for the first creditor when they undertook to attach. The appellees placed their order of attachment in the hands of a second deputy of the same Sheriff who made a levy in his principal’s name subject to the first attachment, and left the property in the hands of the first® deputy. The appellants afterwards sued out an order of attachment and lodged it in the hands of the deputy who was in the actual possession of the property.

No question is made by ihe appellants of the authority of an officer in possession of chattels by virtue of the levy of a writ, to levy a second writ on the property already seized by him, whether it emanates from the same or a different jurisdiction. The contention is that one deputy cannot make a valid levy while the property is in the actual possession of another, although both are acting for the same principal. That is the rule in a few of the New England States. Vinton v. Bradford, 13 Mass., 114; S. C., 7 Am. Dec., 119, and cases cited.

But in those States the Deputy Sheriff appears to be a distinctive officer, and not merely the servant of the Sheriff, having no official existence except through and under him, as with us. Murfree on Sheriffs, secs. 907, 928; Petit v. Johnson, 13 Ark., 55.

The act of the deputy whether in making the levy or holding the possession is the act of the principal, and the case here stands as though all the writs had gone into the hands of the Sheriff himself and been successively levied by him. It is his duty to levy the attachments in the order in which they come to his hands (Mansf. Dig., sec. 319), but the law does not require the officer to go through the empty formality of seizing afresh under each writ what he already has possession of. The prior seizure enures to the benefit of the subsequent writs. Freeman on Ex., sec. 135; Murfree on Sheriffs, sec. 535; Drake on Attach., sec. 269.

This was the judgment of the court below and it is in all things affirmed.