erty in his possession, or under his control, belonging to the defendant, are attached in pursuance of such

writ.

NOTE.-1. DUTY OF SHERIFF-GENERALLY.-The presumptions are that the officer faithfully performs his duty.-Turner vs. Bellagrani, 2 Cal., p. 520; Ritter vs. Scannell, 11 Cal., p. 428. An officer, after entering upon the execution of an attachment, must complete its execution with diligence.-Wheaton vs. Neville, 19 Cal., p. 41. An officer who levies a writ of attachment upon personal property, in obedience to the commands of the writ, has no right to let the property go out of his hands, except in the course of law, and if he does, and the debt is lost, he is responsible to the plaintiff for the amount of the debt. Nor will the oral instruction of the plaintiff in an attachment or execution, respecting property seized by the Sheriff under either writ, discharge such Sheriff from liability. The statute is express that such instruction must be in writing.— Sandford vs. Boring, 12 Cal., p. 539. Where one writ was placed in the Sheriff's hands on Sunday, and another against the same defendant was placed in the hands of a deputy at a quarter past twelve on Monday morning, the Sheriff not knowing the fact, and the first levy was made under the writ at one o'clock Monday morning, it was held that the Sheriff was not guilty of negligence in executing the first-no special circumstances being shown.-Whitney vs. Butterfield, 13 Cal., p. 335. Where an officer, by virtue of a second attachment, levies on property in his possession by virtue of a former attachment, it is only necessary for him to return that he has attached the interest of the defendant in the property then in his possession.-O'Conner vs. Blake, 29 Cal., p. 312. If the Sheriff take property which does not belong to the defendant, the taking is tortious, whether the property was in the possession of defendant or not.-Wellman vs. English, 38 Cal., p. 583. Where the complaint contains no allegation that the levy was excessive, in an action against a Sheriff for the recovery of personal property alleged to have been improperly attached, the plaintiff cannot avail himself of the fact that the evidence showed the levy was excessive.-Sexey vs. Adkinson, 40 Cal., p. 408.

2. LEVY UPON REAL PROPERTY.-The presumptions are in favor of the regularity of the acts of the officer, and a return which simply states that the property was attached is sufficient prima facie to show a due and proper execution of the writ. Our statute pre

scribes the manner in which real estate may be attached, but contains no provision requiring that all the acts necessary to a levy should be set out in the return. Nor is it necessary, when the levy is made by posting a copy of the writ on the premises, that the return of the Sheriff should show that the premises were at the time unoccupied.-Ritter vs. Scannell, 11 Cal., p. 248. An attachment of real property is not perfected until both the acts prescribed by statute, to wit: delivery to the occupant of a copy of the writ, or posting a copy upon the premises, if there be no occupant, and the filing of a copy with the Recorder, together with a description of the property attached, are performed. The omission of either act is fatal to the creation of a lien. Thus, where a writ of attachment was issued on the 26th of August, and a copy delivered to the occupant of the premises, or posted upon them, on the 29th of that month, and on the same day the writ was returned, and filed in the Clerk's office; but no copy of the writ, with a description of the property, was filed with the Recorder until the 9th of September following: It was held: that after the return of the writ to the Clerk's office on the 29th of August, the Sheriff had no authority to take any proceedings for the completion of the attachment, previously omitted; that the writ was authority to him only for acts performed while it remained in his possession; and hence, that another creditor of the debtor purchasing the property from the latter, on the 6th of September, took it free from any lien of the attachment.-Wheaton vs. Neville, 19 Cal., p. 41.

3. LIEN OF ATTACHMENT.-Attaches on personal property only from the time of the levy.-Taffts vs. Manlove, 14 Cal., p. 47. On real estate, immediately upon the levy of the attachment and the deposit of a copy of the writ, together with a description of the land attached, with the County Recorder.-Ritter vs. Scannell, 11 Cal., p. 238. If, after the levy of an attachment and before judgment, the defendant dies, his death destroys the lien of the attachment, and the property passes into the hands of the administrator, to be administered on in due course of administration. Meyers vs. Mott, 29 Cal., p. 359. Where the first attachment against an insolvent is set aside as fraudulent, in a suit brought by a subsequent creditor, to which various other attaching creditors, prior and subsequent, are parties, the plaintiff in the suit cannot claim priority over the attachments preceding his, on the ground that by his superior dili

gence the fraud was discovered. The prior attachments became liens in the nature of a legal estate vested in the Sheriff for the benefit of the creditors.-Patrick vs. Montader, 13 Cal., p. 444. The lien of firm creditors is preferred to the lien of an individual creditor of the remaining partner attaching first.-Conroy vs. Woods, 13 Cal., p. 631. A lien by attachment enables a creditor to file a creditor's bill, without judgment and execution.-Conroy vs. Woods, 13 Cal., p. 626. Plaintiff, January 10th, 1858, in a suit entitled C. and M. and others, composing the Wisconsin Quartz Mining Co. (a corporation), attached a quartz mill and ledge belonging to the corporation. June 26th, 1858, the complaint was amended so as to make the corporation, as such, the party defendant, and judgment was rendered against the company August 14th, 1858, the property sold, the plaintiff becoming the purchaser. October 7, 1857, W. received from the corporation a chattel mortgage on this property, had decree of foreclosure August 9th, 1858, followed by a sale in October following, W. becoming the purchaser. Defendants here are in possession under Sheriff's sale on the decree. Plaintiff claims title under his judgment and sale. It was held: that he could not recover; that he acquired no lien by the attachment, because the property attached belonged to the corporation, which was not a party to the suit until after the levy and return of the writ; that plaintiff's rights attach only from the date of his judgment, August 14th, 1858, and his lien being subsequent to the lien of W.'s judgment, August 9th, 1858, under which defendants' claim, the latter have the better right. Collins vs. Montgomery, 16 Cal., p. 398. T. commenced suit against J.; a writ of attachment was levied upon certain personal property by the plaintiff H., as Sheriff. M. J., wife of J., claimed the property as a sole trader, and brought her action of replevin for the property, and obtained possession of the same, by the delivery of an undertaking as required by law. The undertaking was executed by defendants R. and S. The replevin suit was decided February 5th, 1855, in favor of H. T. obtained judgment in the attachment suit against J., November 30th, 1854. On the 18th of February, 1855, executions in favor of other creditors of J. coming into the hands of II., as Sheriff, he levied them on the same property, and subsequently sold the property and paid the proceeds into Court. H. then brought this suit against the sureties in the replevin bond. It was held that the lien of T.'s attachment continued after the replevy of the goods by M. J.

Attorney to give written instructions to Sheriff what to attach.

Garnish

ment, when garnishee liable to plaintiff.

Hunt vs. Robinson, 11 Cal., p. 262. The lien of an attachment upon funds in the hands of a receiver, follows the property in the hands of his successors.Adams vs. Woods, 9 Cal., p. 29. The return on an attachment cannot be amended so as to postpone the rights of creditors attaching subsequently.-Webster vs. Haworth, 8 Cal., p. 21.

Where a

4. GARNISHMENT.-See note to Sec. 544. debtor transfers personal property to a creditor, to be sold by him and the proceeds applied to the payment of his debts and debts of certain other creditors, with their consent, the transferee and those he represents acquire a lien upon the property and its proceeds superior to any which other creditors could acquire by the subsequent levy of an attachment or other process thereon.-Handley vs. Pfister, 39 Cal., p. 283. The lien of an attachment upon real property is merged in that of the judgment, and has no effect except to confer a priority in the lien of the judgment, and does not revive upon the expiration of the two years lien of the judgment.-Bagley vs. Ward, 37 Cal., p. 121.

543. (§ 126.) Upon receiving information in writing from the plaintiff or his attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, the Sheriff must serve upon such person a copy of the writ, and a notice that such credits, or other property or debts, as the case may be, are attached in pursuance of such writ.

NOTE. To hold a corporation as garnishee the writ and notice must be served on the President, or other head of the same, or the Secretary, Cashier, or other managing agent thereof. In case of a banking corporation, service of process on the teller is not sufficient. Kennedy vs. H. S. & L. S., 38 Cal., p. 151. An exSheriff is served as a private individual.-Graham vs. Endicott, 7 Cal., p. 144.

544. ($127.) All persons having in their possession, or under their control, any credits or other personal property belonging to the defendant, or owing any debts to the defendant at the time of service upon them of a copy of the writ and notice, as provided in

the last two sections, shall be, unless such property be delivered up or transferred, or such debts be paid to the Sheriff, liable to the plaintiff for the amount of such credits, property, or debts, until the attachment be discharged, or any judgment recovered by him be satisfied.

NOTE.-1. GENERALLY.-The doctrine of garnishment, though regulated in part by statute, is a common law proceeding; and in proceedings against a garnishee the parties may demand a jury trial.-Cahoon vs. Levy, 5 Cal., p. 294. The liability dates from the service on the garnishee.-Johnson vs. Curry, 2 Cal., p. 33.

2. EFFECT OF GARNISHMENT. - A garnishment served upon the owner, in a suit against the head contractor, after the commencement of the building and before notice served, prevails over the lien of a subcontractor.-Cahoon vs. Levy, 6 Cal., p. 295. The lien of a sub-contractor filed, and notice given to the owner of a building, within thirty days after the completion of the work, under the Act of 1855, attaches from the time the work was commenced, and takes precedence over a garnishment served on the owner against the contractor, after the work was commenced, and before the filing and serving notice of lien.—Tuttle vs. Montford, 7 Cal., p. 358. Where A., who carried on a printing office, and was indebted to the hands of the office, placed in the hands of B. a certain amount of money, with directions to B. to pay the hands, which B. neglected to do, and where there was no evidence that the hands agreed to look to B. for their money, or that A. was indebted to the hands in an amount equal or approximate to the sum in B.'s hands, and the money was subsequently attached in the hands of B., at the suit of C. against A., it was held that the money was liable to the attachment.-Chandler vs. Booth, 11 Cal., p. 342. The fact that the defendant in an action for the recovery of money has been garnisheed by a creditor of the plaintiff constitutes no defense, and cannot be set up in bar. The remedy of defendant in such case is by motion, based upon affidavit of the fact, for stay of proceedings until the action against the plaintiff or the attachment is disposed of.-KcKeon vs. McDermott, 22 Cal., p. 667; Pierson vs. McCahill, 21 Cal., p. 122. Money deposited with the Sheriff by a defendant to procure the release of an attachment is in the custody of the law, but when the parties, by