
    Samuel L. James v. Samuel Kennedy el al.
    
    1. Lien of Execution. In a contest between the purchaser of goods and a judgment creditor of the vendor, the lien of the execution when levied relates to its teste. But as between one claiming under process from a Federal Court and one claiming under process from a Slate. Court, priority of lien depends not upon the date of the teste, but that of the actual seizure.
    Cases cited : Malone v. -Abbott, 3 Hum., 532; Deehardv. Edwards, 2 Sneed 93; Ridgeway v. Bank, 11 Hum., 523 ; Love v. Smith, 4 Yer., 117.
    2. Surety on Delivery Bond. The surety on a delivery bond has the right to see that the goods shall not be so disposed of that delivery cannot be made according to the terms of the bond.
    3. Chancery Pi.eai>inc;s and Practice. - Under the prayer for general relief, one may have relief other than that specifically prayed for. Or he may state his case in the alternative and pray for and have relief accordingly, but having failed to pray in the alternative, he cannot under the prayer for general relief, have relief inconsistent with that specifically prayed for. Me. Qr. A party having framed his bill with the exclusive view to reach notes given for the purchase of goods, specifically praying that the notes be attached and subjected to the payment of his claim, cannot, under the prayer for general relief, reach the goods themselves, although the bill may have contained a charge that the sale was fraudulent.
    Oases cited : Kirhman v. Snodgrass, 3 Head, 370.
    FROM SHERRY.
    Appeal from a decree of the Chancery Court, April Term, 1873. Hon. W. M. Smith, Ch.
    J. E'. Bigelow, for complainant.
    Weight & McKissicsk, for defendants.
   Campbell, Sp. J.,

delivered the opinion of the court.

On the 6th day of April, it being one of the days of the March Term, 1867, of the Circuit Court of the- United States, for the district of West Tennessee, A. Vansyekle & Co. recovered judgment in that court against the defendant Samuel Kennedy and one William Shelly for the sum of $1,160.52. On April 17, 1867, Kennedy, who was a grocery merchant in Memphis, sold his stock of groceries to the defendant J. N. Patton, for the sum of $1,374.48, who executed his three notes for $458.16, due in two, four and six months. On April 15, an execution issued under the Eederal Court judgment, which came to the hands of the marshal, and on the 24th of the same month was levied upon the stock of groceries sold by Kennedy to Patton. On the 25th, Patton gave a delivery bond to the marshal for the forthcoming of the property on July 20, 1867, the day fixed for the sale. The marshal returned the execution on the same day, making an inventory of the goods levied on, and the forthcoming bond a part of his return.

On April 24, 1867, complainant filed his attachment bill in the Chancery Court at Memphis, alleging that the defendant Kennedy was indebted to him in the sum of $616.17, due by notes and account, and that he was the owner of two notes of $458.16 each, executed by Patton to Kennedy in part payment of a stock of goods sold, or pretended to be sold by Kennedy to him, which sale or pretended sale, he charges, was made to defraud the creditors of Kennedy. He prayed for an attachment and injunction and general relief.

The defendants put in their several answers, denying all the material allegations of the bill, except the sale to Patton and the execution of the notes, but allege that the notes had been assigned to Kennedy before the filing of the bill, to secure certain debts due by him to several parties.

The attachment and injunction writs came to the hands of the sheriff of Shelby county on April 24, and were both executed on April 25, 1867. The attachment was, as appears from the return of the sheriff, levied upon a stock of groceries and produce in a house on the corner of Auction and Front streets, as the property of Samuel Kennedy, which appears from the proof to be the same property levied on by the marshal.

Nansyokle & Co. are not made parties to this bill. The validity of their judgment is not in question. Nor is there any allegation or charge in the bill putting in issue the regularity or validity of the levy made by the marshal, on April 24, 1867.

The Federal Court execution was tested the first Monday in March, 1867, prior to the purchase by Patton, and was a lien upon the goods from that date until the delivery bond should become forfeited, which could not be, according to its terms until July 20, following. The property was therefore in the custody of the court at the time the attachment was levied. Malone v. Abbott, 3 Hum., 532; 2 Sneed, 93.

But it is insisted that the proof shows the Van-syckle execution was not in fact levied on the day stated in the marshal's return, but was levied on a subsequent day and ante-dated by the marshal, and that the property being seized by process from the State Court, the execution lien was displaced.

If it were conceded that the proof shows that the marshal's return was false, and that the attachment was levied before the execution, has the complainant by his pleadings, placed himself in position to avail himself of the fact? The bill was filed the same day the marshal returns the levy was made. Neither the execution creditor nor the marshal are made parties to the suit. There is no allegation or charge in the bill attacking the verity or bona fieles of the return. If the facts relied upon to establish it came to the knowledge of complainant after -the original bill was filed, he has not availed himself of it by filing an amended or supplemental bill putting the fact in issue. It is true, that if a marshal or sheriff makes a false return by fraud and collusion with a party, or by mere mistake, a court of equity has jurisdiction to interpose and give appropriate relief. Ridgeway v. Bank of Tennessee, 11 Hum., 526. But the fact must be put directly in issue. The return of the officer being prima facie true, can only be overturned by satisfactory proof. And if the pleadings do not put the verity of the return in issue, it cannot be attacked collaterally either at law or in equity. In the state of the pleadings in this cause, the return of the marshal must be presumed to be true. Hence, it follows that the property attached by the sheriff was at the time in custodia legis, and not liable to seizure under process from the State Court. Brown v. Clark, 4 How., 4; Buck v. Colbath, 3 Wal., 334; Hogan v. Lucas, 10 Peters, 400; Taylor et al. v. Corrye, 20 How., 583; Malone v. Abbott, 3 Hum., 532; Dechrad v. Edwards, 2 Sneed, 93; Love v. Smith, 4 Yer., 117.

Taking this view of the case, the other questions' presented in the argument of the cause, are not necessary to be considered, and as the notes sought to be reached had been disposed of by Kennedy before the bill was filed, there is no further matter for litigation in this cause.

The decree of the Chancellor will be reversed, the bill dismissed, and the complainants required to pay the ‘ costs of this court and of the court below.

On rehearing,

McFarland, J.,

delivered the opinion of the court.

This cause was heard at the last term, and an opinion announced reversing the decree and dismissing the bill. A rehearing however was granted, which has been had at the present term.

The complainant charges that the defendant Kennedy is indebted to him in several amounts specifically set forth in the bill. He then charges that the said Kennedy is the owner of two certain promissory notes made payable to him by the defendant Patton, which notes are fully described. The bill further says, that these notes, as complainant is informed and believes, were given “for the purchase price on part of a stock of goods sold or pretended to be sold by Kennedy to Patton, which sale or pretended sale, your orator charges to have been made to defraud the creditors of Kennedy.” It is then further charged that Kennedy is about to transfer or negotiate these notes, and also the various grounds specified by statute for attachment are charged in the alternative to exist as to the defendant Kennedy.

The prayer of the bill is for an attachment against the estate of Kennedy, and that said two notes be “attached specifically, and held for the payment of complainants debt.” An injunction is also prayed for enjoining said defendant from a sale or transfer of said notes, with a prayer for the decree of the complainants debt, subjecting to its payment the property attached, and for general relief. An injunction and attachment issued. The attachment is in accordance with the prayer of the bill. It commands the officers to attach the estate of Kennedy generally, and specifically to attach the two notes given by Patton to Kennedy. The injunction was executed, and the sheriff returned that he levied the attachment upon a certain stock of groceries in the possession of the defendant Kennedy. It appears that soon after, Patton executed a replevin bond claiming these groceries as his own. This bond is substantially in the form prescribed by the statute, and conditioned to pay the debt, if the court shall so decree. It appears that this stock of groceries is the same referred to in the bill as having been sold by Kennedy to Patton, and for which the notes sought to be attached were given. Upon the execution of this replevin bond, as we infer, the goods were restored to Patton. The defence of Patton is rested on several grounds; and first it is insisted in the answer and in argument that this bill does not attack the sale or transfer of this stock of goods from Kennedy to Patton; nor was an attachment 'of these goods sought, and we are strongly inclined to this view of the case. It is true that the bill charges this sale or pretended sale to have been to defraud the creditors of Kennedy. It is not directly charged that Patton had knowledge or participation in this fraudulent purpose of Kennedy. But if the bill in other respects was framed to meet this view of the case, we would probably hold ’ the fraud sufficiently charged. We find however, that although, this charge is made as to the fraud, yet the bill prays specifically that the notes given by Patton for the ■goods be attached and applied, to the payment of ■complainant’s debt. There is no prayer that the goods be attached, nor is there any prayer that the sale from Kennedy to Patton be declared fraudulent and set aside, nor is this prayed for in the alternative. As we have said, the specific prayer is that these notes be attached and applied to the payment of complainant’s debts.- Under the prayer for general relief, it has often been allowed to grant relief different from the specific relief prayed for, but we suppose not relief inconsistent with the case made by the bill. Had the complainant sought by this bill to attach the goods, have the sale of them from Kennedy to Patton declared fraudulent, and the goods sold for the payment of his debt, and prayed also, in the alternative that if the court should be of opinion that the sale was not fraudulent, the price given for their purchase should be applied to his debts, a different question would be presented. But here the case is placed upon the complainant’s rights to subject the debt due for the goods, to the payment of his debt. This must be upon the assumption that the sale was not fraudulent, or if so, that the fraud was waived. See 3 Head, 390. Although it is stated that the sale was fraudulent, this is inconsistent with the relief prayed for, and the direct issue as to the validity of the sale is not made by the prayer' of the bill. We would take it from the entire bill, that it was intended by the complainant to waive the fraud of the parties, and place his case upon his rights to reach the notes, not choosing ta risk attaching the goods.

We are inclined to hold therefore, that the issue as to the validity of this sale is not made in- the bill in such a manner as to require determination.

These goods were attached simply as the property of the defendant Kennedy, they were replevied by Patton. It appears clearly, that the goods did belong to Patton, unless the sale to him by Kennedy be declared fraudulent; this question, as we have said, is not presented in this record. It would follow that the complainant is entitled to no relief as to the goods, or upon the bond of Patton.

The same result may be reached upon a different ground. It appears from the answer and proof that after the sale of the goods to Patton, an execution from the Circuit Court of the United States for West Tennessee, in favor of Vansyckle & Co., upon a judgment against the defendant Kennedy and one Shelby, was levied upon the goods in question. This execution bore test of a date prior to the sale of the goods to Patton, and overreached the sale. Kennedy therefore, gave a delivery bond for the delivery of the goods to the marshal, on the :-day of July following, with the defendant Patton as security.

A question earnestly argued is, which levy is prior in point of time, the levy of the marshal or the sheriff, under the attachment. The return of the marshal shows that his levy was made on April 20, 1867, and the delivery bond taken on the 25th; the return of the sheriff shows that his levy was made oh April 25, 1867, at 11 A. M. It is insisted that the proof shows that the levy of the sheriff was in fact made on the 24th, while the mar.-hal’s levy was not made until the 26th. We must take the returns as prima facie true, and we do not see that the proof authorizes us to fix a different time as the true date of either of the levies. A levy upon personal property consists, not in the writing upon the process, but in the actual seizure of the goods by the officer acting under the process. And upon this record we must assume the fact to be that the goods were first seized by the marshal, and released upon the delivery bond referred to. They were then seized by the sheriff, and released upon the replevin bond of Patton, and upon this state of facts what would be the law ? As between the process from the Federal and State Courts, the priority of lien depends upon first actual seizure of the goods. In this respect the priority of the teste of the process is not the question, as we have recently held. It would result that the marshal having first seized the goods, so long as he held or claimed them under his process, the attachment from the State Court could not be properly levied. This would result in a con Act of jurisdiction. The goods, however, were released upon a delivery bond, before the sheriff’s seizure, and it is true that the marshal is not before this court claiming to enforce his lien, but as we have seen, the levy of the marshal was rightful as against Patton. As to his purchase, the execution from the Federal Court related to its test, and Patton became surety upon Kennedy’s delivery bond, and became equally bound for the delivery of the goods or their value, and as such surety, he has in equity the right, by virtue of the lien of the ex-edition from the Federal Court, to see that the goods are not removed beyond the possibility of being delivered in accordance with the delivery bond. See Dechard v. Edwards, 2 Sneed 93, and this independent of his right under this purchase, and we see no reason why this defence may not be set up by answer without cross bill, as Patton is made a party by the original bill, and relief asked against him, as to this transaction.

No relief can be granted as to the two notes sought to be reached. The bill, as to these notes, is in the nature of a garnishment bill. It appears in the answer and proof that before this bill was filed these notes had been placed in the hands of third parties, who claim to be the creditors of Kennedy, as collateral security for debts claimed against him. ~We caiinot adjudge between complainants and these third parties as to who is entitled to collect these notes for, the reason that said holders of the notes are not parties to this cause.

The decree, heretofore ordered by this court, reversing the decree of the Chancellor and dismissing the bill, will not be disturbed so far as the defendant Patton is concerned, but it will be modified so as not to affect the decree rendered by the Chancellor against Kennedy' for the amount of complainant’s debt, Kennedy not having appealed.  