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1 Thompson 36

Porter v. Fine

Tennessee Supreme Court

Decided September 15, 1848

Tennessee Supreme Court · decided 1848-09-15

This was a motion made in the circuit court of Sevier county, to allow the sheriff to amend his return upon an execution levied upon land. The return is as follows, viz: “No goods and chattels of the defendant found in my county ; but levied this Fi. Fa. on four hundred and. seventy one acres of land lying in 5th district, adjoining the land of C. Cannon, H. M. Thomas and others ; levied on as the property of James P. H. Porter, sr., this 14th of May, 1848.

Decided 1848-09-15

McKinney, J. :

¶1In no instance can an amendment be allowed, where in effect it would be not merely to aid an informal description of the premises levied upon, though good in substance, but to give a new or different description thereof, and thereby, upon a pretext of an amendment, substitute a sufficient return for one wholly inoperative and void.

¶2The return, standing alone, is essentially defective. The description of the premises is insufficient — the levy must show the location of the land levied upon with reasonable certainty; — the sheriff cannot resort to a presumption to supply evidence of a fact required to be shown by record evidence.

¶3Judgment of the circuit court reversed, and the motion dismissed.

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