Bancroft, Leman & Co. v. Sinclair

Decided April 15, 1860

Court of Appeals of South Carolina · decided 1860-04-15

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.

Decided 1860-04-15

Curia, per O’Neall, O. J.

¶1The 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.

¶2This Court concurs in the ruling of the Judge below; and the motion is dismissed.

Johnstone and Wardlaw, JJ., concurred.

¶3Motion dismissed.