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PULLIAM V. OSBORNE, 58 U. S. 471 (1854)

U.S. Supreme Court

Pulliam v. Osborne, 58 U.S. 17 How. 471 471 (1854)

Pulliam v. Osborne

58 U.S. (17 How.) 471


Although, by the laws of Alabama, a lien upon property accrues from the delivery of the execution to the sheriff or marshal, and the rights of creditors claiming under the same jurisdiction are adjudged accordingly, yet the same rule does not apply where a controversy arises between executions issued by a court of the United States and a state court.

In such a case, the rule is that whichever officer, the sheriff or the marshal, acquires possession of the property first by the levy of the execution obtains a prior right, and a purchaser at a judicial sale will take the property free from all liens of the same description.

This case originated in the District Court of the United States for the Middle District of Alabama between Samuel Woodward, plaintiff in execution, and Amos Albritton, claimant, defendant, who were afterwards represented by their administrator and executor respectively. It was a contest as to the superior validity of executions issued out of a state court and a United States court under the following circumstances:

"United States Execution"


"May term. Woodward's judgment against Pulliam in the District Court of the United States for the Middle District of Alabama."

"June 10. Execution issued."

"October 26. Marshal levied on the negroes."

"State Execution"


"April 19. Two judgments against Pulliam in the district Court of Pickens County."

"May 4. Executions on these issued."

"July 12. Sheriff levied on certain slaves. Bonds given for their forthcoming on first Monday in August."

"August 3. Execution on these forthcoming bonds."

"September 21. Execution levied on the negroes named in the issue in this case."

"October 3. Sheriff sold slaves to Albritton."

Upon the trial, the court instructed the jury as follows, viz.,

"On the case being submitted to the jury, the court charged the jury that if the executions which issued on the two judgments against Pulliam were levied upon sufficient property, and a bond given for the forthcoming of the property on the day of sale, in each case, which bonds were forfeited and thus returned by the sheriff, and that afterwards executions were issued on the judgments rendered on the said forthcoming bonds, against the said Pulliam and his surety in the said forthcoming bonds, which said executions did not come to the hands of the sheriff until some days after the execution in favor of the plaintiff was received by the marshal; that the said plaintiff had the priority of lien on the property of Pulliam, and that the said negroes levied upon by the marshal, in said case, were liable to satisfy the execution of the said plaintiff, notwithstanding they had been levied upon and sold by the sheriff under the execution against Pulliam and his surety in the forthcoming bonds; to which charge claimant excepts, and prays the judge of this Court to sign and seal this bill of exceptions, which is accordingly done."


This instruction being in favor of Woodward, the plaintiff in execution, Albritton sued out a writ of error and carried the case to the Circuit Court of the United States, for the Fifth Judicial Circuit, Southern District of Alabama.

In April, 1853, that court passed an order "that the said cause be transferred to the Supreme Court of the United States, according to the statute in such case made and provided."

Page 58 U. S. 474

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