Saliba v. Agnes

193 N.C. 251

Opinion

Stacy, C. J.,

after stating the case: Attachment partakes of the nature of an execution before judgment (Johnson v. Whilden, 166 N. C., 104), and the sheriff, upon the service of the writ, acquires a special interest in the property attached, which he may enforce for the protection of the rights of all concerned, and “he is liable for the care and custody of such property, as if it had been seized under execution.” C. S., 807; Hambley v. White, 192 N. C., 31; Peck v. Jenness, 48 U. S., 612. But we are aware of no provision of law whereby the sheriff, or the court having jurisdiction over the case, may allow or permit the plaintiff to use the property, such as here attached, pending the litigation, upon the execution of an indemnity bond. Should the plaintiff finally prevail in the action, the attached property is to be sold to satisfy the judgment, as prescribed by C. S., 824, but the defendants, it would seem, are entitled to have the property preserved in the meantime so that it may bring its full value at the sale, and if it cannot be held without material deterioration, pending the litigation, it is to be sold as provided by C. S., 812, and the proceeds held to await final judgment.

Let the cause be remanded for further proceedings, not inconsistent with this opinion.

Error, and remanded.