
    Bancroft, Leman & Co. vs. Daniel Sinclair.
    
      Sheriff — Amendment--Attachment—Return.
    "Where the Sheriff levies on property under an attachment, but omits to make a return of the levy, he may afterwards be permitted to make the return nunc pro tunc: and upon such return being made, the rights of the attaching creditor will be the same as if it had been made at the proper time.
    BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ A motion was made on the part of the plaintiffs to allow the late Sheriff (Carew) to make return, mine pro tunc, of the levy of the writ in Foreign Attachment of these plaintiffs against the defendant, issued 15th May, 1857. It appeared by affidavits, that the Sheriff (or his deputy) had levied the writ on certain property of the absent debtor, and had advertised the same on the Court House door; but, by some unexplained neglect, he had not attached a formal return to the writ. After the service of the writ in attachment, and before judgment was obtained by these plaintiffs (which was November 12th, 1859,) other plain tffe had entered up judgment, and lodged executions against Sinclair; and among the rest, Vidal & Bichareis, (to wit, 1st February, 1859,) and the motion to allow the return aforesaid to be made was resisted on behalf of such intervening judgment and execution creditors, and also (if necessary, as Mr. Buist sáid,) on behalf of Sinclair, the absent debtor.
    “ I did not think the absent debtor could be heard at all; for he had not appeared and put in special bail, or even filed a power of attorney; and after argument, I saw no reason to doubt the power of the Court to make such order as was moved, and no good objection derived from any legal right of Vidal & Richards to the propriety of granting the motion. It was granted accordingly.”
    The defendant, and Vidal & Richards appealed, on the ground:
    Because, however proper it may have been that such an order should be granted, as between the parties to the judgment in Attachment, and when no one could be affected by it but the said parties, it could not be made, where, as in this case, the rights of third persons, and more especially of judgment and execution creditors, would be thereby defeated.
    The creditors, Vidal & Richards, moved for a rule before his Honor upon the Sheriff, to show cause why he should not pay over to them certain monies arising from the sale of the defendant’s property. His Honor refused the motion. His report of the case is as follows :
    
      “ A rule was served on J. E. Carew, late Sheriff, to show cause why he should not pay over certain monies received by a sale of the defendant’s property to their executions. Before the question upon the rule was determined,' a motion was made in behalf of Bancroft, Leman & Go. vs. Daniel Sinclair, to permit the Sheriff (Oarew) to make return, nunc. pro tunc, upon a writ of attachment, which the last named plaintiffs had issued against the said Sinclair, before Vidal and Richards had obtained their judgments; and upon which writ in attachment the said plaintiffs had obtained judgment, but posterior to the judgments and executions of Vidal & Richards.
    “ Their attachment writ, however, if levied upon the property which produced the money in question, undoubtedly had a prior lien to that of the judgments of Vidal & Richards. If it was right to grant the motion to permit the Sheriff to make a formal return, nunc pro tunc, of the levy of that writ in attachment which he swore he had made, then this rule should be discharged.
    “I thought it proper to grant that motion, and therefore discharged the rule moved by these plaintiffs.”
    The creditors, Yidal & Richards, appealed on the ground, that' their executions being the oldest against the defendant, Sinclair, they were entitled to the monies arising from the sales.
    
      Buist, Thomas Y. Simons, for appellants,
    cited Williams vs. Brackett, 8 Mass. 240; Bmmerson vs. Upton, 9 Pick. 167; Putnam vs .Hall, 3 Pick, 445; Means vs. Osgood, 7 Green. 147; Bowman vs. Stark, 6 New Hamp. 459 ; Davidson vs. Oowan, 1 Dev. 301; Hovey vs. Waite, 17 Pick. 196; Short vs. Kellog, 10 Geo. R. 180; Pierce vs. Strickland, 26 Maine, (13 Shep.) 277; Davis vs. Putnam, 5 Gray, 321; Newhall vs. Provost, 6 Cal. 85, cited 18 U. S. Dig. 42; 2 McM. 92;
    
      Lockwood & Ramsay, Whaley & Lord, contra.
   Curia, per O’Neall, O. J.

The right of the party arises from the levy of the attachment. The return is merely evidence of that fact. If the Sheriff omits to make that return, he can be made to do it on a rule at the instance of the party aggrieved, or the Court in its discretionary power of amendment may, when necessary, order it to be done nunc pro tunc.

This Court concurs in the ruling of the Judge below; and the motion is dismissed.

Johnstone and Wardlaw, JJ., concurred.

Motion dismissed.  