Opinion
December Term, 1825.
1. When a sheriff levies, and advertises for sale, but in consequence of the payment of the debt to the plaintiff by the defendant in execution does not actually sell, he is nevertheless entitled to his commissions on the whole debt, under the act of 1784.
2. When the plaintiffs in execution are administrators, who, after levy by the sheriff, suspend the proceedings under the execution, and subsequently receive the money from the defendant, without any sale by the sheriff, they are liable to the sheriff in action for his commissions, individually, and not as administrators.
3. Laws 1824, ch. 3, giving to the Supreme Court the power of amending, extends only to such amendments as the court below might have made; and it seems no substantial amendment will be allowed in the Supreme Court; because on such amendment the other party should have leave to amend his pleadings, and thus new issues are made which there is no tribunal to try.
ACTION on the case, brought by the sheriff of Rockingham against the defendants as administrators of one Solomon Parks. The cause was tried below before Paxton, J., at ROCKINGHAM, and the jury found a verdict for the plaintiff, subject to the opinion of the court, on the following case: The defendants had recovered a judgment in Randolph County Court against Samuel Hill, and William Hogan, (2) his security, for $9,796, on which judgment a fi. fa. issued to the plaintiff, who was sheriff of Rockingham, and he levied the same on property of Samuel Hill, sufficient to raise the money due thereon, took it into his possession, advertised the sale, and gave notice thereof to the defendants in this case. Harper, in behalf of himself and Gray, wrote to Hogan, in forming him that the arrangement which had been agreed upon between them (Gray and Harper and Hogan) relative to the claim against Hill and Hogan, could be attended to by Hogan, who was going to Rockingham, without the trouble of attendance on the part of Gray and Harper; and the letter added, that no advantage would be taken of the sheriff (the plaintiff), should he postpone the sale, provided Hogan and the sheriff should make an arrangement whereby the judgment would be satisfied by a certain time.
Gaston for appellant.
Badger for appellees.
The arrangement which was referred to in the letter as having been agreed on was to this effect, that as Hill had gone to the south to raise money to satisfy the execution against himself and Hogan, the property might be purchased at the sale by Hogan without an actual advance of the money (in order to prevent a sacrifice), and the defendants were to indulge Hogan for the money.
Before the day of sale Hill returned and made a payment to Hogan of $7,000. Hogan then wrote to the plaintiff, informing him that he was authorized by Gray Harper to attend to the business relative to the execution, and directing him to suspend the sale, and return the fi. fa. with an indorsement that the sale was postponed by consent of plaintiffs. Matlock, on receiving this letter, did postpone the sale, and returned the fi. fa. with his levy indorsed; and afterwards Hill having paid to the defendants the sum remaining due, no other execution ever issued.
Matlock applied to Harper, who was clerk of the court as well as plaintiff in the execution against Hill, before the payment made (3) by Hill to defendants, for a writ of ven. ex. to make the debt and his commissions, and Harper, as plaintiff, refused to issue the writ. At the time that Matlock postponed the sale and returned the execution he was ignorant of the fact that Hill had paid Hogan the $7,000.
Hogan's only authority was contained in the letter of Harper before set forth; and after writing that letter, Hogan informed both Gray and Harper of the contents thereof, and they sanctioned what he had done.
Matlock brought this suit for his commissions on the amount of the judgment against Hill and Hogan, and on the case as above set forth the court gave judgment for the defendants, and the plaintiff thereupon appealed to this Court.
The act of 1784, which is the only one in force relative to sheriffs' commissions, entitles them to 2 1/2 per cent for executing an execution against the body or goods. These expressions do not appear to me to warrant a different construction from that uniformly given to the words employed in 29 Eliz., ch. 4, which are levy or extend and deliver in execution. These words were intended to apply to all the various executions in England by which the body, lands, goods or chattels might be taken. Our act is confined to an execution against the body or goods. If upon a levy of a fi. fa. the sheriff is entitled to commissions, though the parties compromise before he sells any of the goods, under the statute of Elizabeth, it appears to me that he is equally entitled under our act. The case cited from 5 Term is a decision upon the very point, and it appears reasonable that after a sheriff has been at the trouble of levying upon goods, and perhaps incurred the risk of taking care of them till the sale, he should receive his commissions, notwithstanding the compromise of the parties. It is stated in this case that the sheriff levied, took the property into his possession, advertised the sale, and would of course have sold but for the letter of one of the defendants. These acts were all done for their benefit, and the (13) final act of selling was waived by them, as they had a right to do. But the sheriff being ready to sell, and being prevented by the defendants from so doing, was equivalent as between him and them to an actual sale, and entitled him to claim his commission from them. I think that after execution had been suspended by the defendants' direction, and the debt paid, the sheriff would have no right to take out a venditioni exponas against the consent of the plaintiffs in the execution, to sell for his commissions merely.
The execution is under the control of the plaintiff, who had it in his power to provide for the payment of the commission before he interposes to stop it; and if he neglect to do so, it is just that he should be chargeable with them. A contrary rule, it appears to me, might lead to great oppression.
Whatever doubt might be entertained as to the authority given by Harper alone to Hogan, yet I think there can be none when both the defendants sanctioned what he had done. This is quite equal to an authority given by both when the letter was written.
There is, however, an objection made to the form of the action, which must prevail. It appears from the writ that the defendants are sued as administrators, which cannot be done when they are liable in their own right. The cause of action and the implied contract arose after the death of the intestate, and was occasioned by the personal act of the defendants. It would operate most unjustly towards creditors and next of kin if administrators might burthen the assets with claims in which their intestate had incurred no responsibility; yet if a recovery is permitted in this action the judgment will be, in the first place, against the goods of the testator, and the whole might be exhausted in discharge of that which the representative should properly answer in his own person.
The judgment of the Superior Court seems to have been rendered without any reference to this objection, and solely on the question (14) of law made in the case reserved; it ought, therefore, to be affirmed so far as the question relative to the form of the action is involved in it, and reversed so far as it relates to the question made in the case reserved. This is my opinion as to the proper manner of entering the judgment of this Court, under the act of 1818, sec. 4, "that the Supreme Court may render such judgment as, on an inspection of the whole record, it shall appear to them ought in law to be rendered thereon."
The act passed in 1784, New Rev., ch. 223, allows to sheriffs 2 1/2 per cent for executing a warrant of distress or an execution against the body or goods; and it is argued for the plaintiff that he is entitled to those commissions, because he levied upon the goods, and would have sold them, had the sale not been stopped by the defendants, who were plaintiffs in that execution; and in support of this doctrine Alchin v. Wells, 5 Term, and 1 Caines, 192, are relied upon.
In the first of these authorities it was held that the sheriff was entitled to his fees when he levied upon the goods under a fi. fa., though the parties compromised before he sold them.
This case is admitted to be law, but it is denied that the British statute, which allows fees to sheriffs, resembles our act of 1784. It may, therefore, not be amiss to compare them.
By the statute of 29 Eliz., ch. 4, it is declared that it shall not be lawful for any sheriff, etc., to receive or take of any person, etc., for the serving and executing of any extent or execution upon the body, lands, goods or chattels of any person, etc., more, etc., than in this present act shall be limited and appointed, etc., that is to say, 12 pence for every 20 shillings when the sum exceeded 100l and 6 pence for every 20 shillings over and above that sum that he shall so levy or extend (15) and deliver in execution, or take the body in execution for. To make it more plain, I will read it thus: The sheriff shall receive for serving and executing an execution on goods such and such fees for such and such sums as he shall so levy. From this part of the statute I understand that the sheriff shall have fees in proportion to the sums which he shall levy or raise by serving and executing the execution. I think the verb to levy here means to raise. I cannot allow to it the meaning here that is sometimes given to it by the context, when it is said, "that an execution has been levied upon property, but not sold"; in such case its meaning is more restricted. I, therefore, think the authorities relied upon are applicable to the act of 1784; and that under the circumstances of this case the plaintiff is entitled to his commissions. I think the law is founded in justice. The execution had been issued; was levied upon property which he was about to sell, in which event he would have received his commissions; the act he had undertaken to do was an entire one, was not divisible; and I think he is entitled to the whole of his commissions. If, therefore, the question depended upon the consideration of this part of the case, I should be for granting a new trial. But an objection is made to the form of the action, and that is, that the defendants have been brought into court by summons as administrators, and no declaration has been filed laying the cause of action against them in their individual characters; and it was not known until the trial came on and the evidence disclosed that they were sued for an act done by them in their individual characters. The case made up and sent here was taken from the evidence, and discloses a cause of action against them in their individual characters, and we cannot give judgment against them in those characters when the record shows they were sued as administrators; and we cannot give judgment against them as administrators for acts done by them in their own persons. When they stopped the further progress of the execution in the hands of the plaintiff as sheriff, they did not do it as administrators, but they did it in their individual characters, and they should have been sued accordingly. (16)
With respect to the aid contemplated by the plaintiff to be derived from the act of 1824, ch. 3, by amending the proceedings, I think it is not to be relied upon.
In the first part of section 2 of the act a general power is given to the Supreme Court to amend from time to time the proceedings in either the county or Superior Courts. In the latter part of the section it is restricted to such amendments as might have been made in the county or Superior Courts. Here the act is not very explicit; its words are broad enough to include all amendments that might have been made in a suit at any stage of the proceedings; but I am far from thinking that this Court possesses the power of making all such amendments by that act, but only such as the court from which the record came might have made after final judgment rendered by it. It would be preposterous to say that this Court could permit an amendment to be made which the court from whence it came could not make. In the earlier stages of a suit amendments might be made in either the county or Superior Courts; if they are not moved for until the suit has progressed further, it might not be proper then to permit them to be made. It certainly is not the meaning of the act that this Court will suffer amendments to be made here which the county or Superior Courts might have allowed to be made, in case application had been made at the proper time, but which after that time they ought not to have permitted to be made.
If, then, after the trial of this cause in the Superior Court, it was too late to amend the proceedings, so as that the suit would stand against the defendants in their individual characters, this Court has not the power of doing it. It is to be regretted that the cause cannot be decided upon its merits; but this Court has no alternative, but must say that judgment must be given for the defendants.
I agree with my brother Hall as to the construction of the statute 29 Eliz. and our act of 1784; they both mean the same thing as to the sheriff's poundage on a fieri facias, viz., the actual raising the money by the sheriff. The English authorities, therefore, on the construction of the English statute are decisive of this question. They are founded on this plain principle, that when one person is engaged at the request of another in an act for which such other person is to compensate him, and he is prevented from performing the act, or discharged therefrom, by the person who employs him, it gives to him all the rights of an actual performance, where the act is not made up of separate and distinct parts; for the act being entire, the law cannot make it to consist of parts. Here the receipt of the money by the defendants themselves rendered it impossible or illegal for the sheriff to proceed in his execution; he was thereby discharged from going on; and, besides, the pressure of the sheriff is presumed to have caused the defendant in the execution to pay the money. As to the sheriff's going on against the debtor for the poundage, he has no authority to proceed for that, he not having levied any money on the execution, on which condition alone he could levy his poundage on the defendant; for the poundage is so much in the pound for the sum levied or raised, and I am considering this part of the case as if the defendant in an execution was liable for poundage. In England he was not liable, until 43 Geo. III., and our laws are silent on the subject, but it has been the practice here since our act of 1784, and possibly before. How it commenced I am at a loss to determine; possibly from an act which subjects the party cast to the payment of all costs; but this was not considered as costs in England; the plaintiff paid it until the statute of Geo. III. However, it is founded on practice, and the Court will not now disturb the practice.
As to the defendants being liable to this action at the suit of the sheriff, I am at a loss for a principle to support it; the law (18) implies no such engagement. But I think that these defendants were liable in this case in their individual characters, and not as administrators. They cannot rightfully onerate the assets with this charge, which is the test by which the question must be tried. This is unlike the promise made by an executor, when the testator received the benefit, or when his estate received it, or when he indorsed a note or bill as executor. In such cases it is proper that the assets should be onerated. The court should prevent the assets from being charged, unless for such claims as should protect them from the demands of others having claims upon them.
As to making the amendment under the late law authorizing this Court to make such amendments on the records in the courts below, when brought into this Court, as it may judge proper upon terms, I am wholly at a loss to conceive a case where it would be proper to exercise this power, for every amendment, in substance, presents a different statement of facts, which the adverse party should have an opportunity of controverting. Every amendment in the writ or declaration (I mean substantial amendments) should be accompanied with permission to the defendant to amend his plea; and so permission to the defendant to amend his plea should be accompanied with a permission to the plaintiff to amend his replication. How this Court, which is entirely a court of errors in law, can make these amendments, I cannot conceive. How or where are the new issues of fact to be tried? If there are cases where we can exercise the power, I am satisfied that this is not one of them. However reluctantly, I am compelled to say that judgment must be entered for the defendants, for they are not liable as administrators.
PER CURIAM. Affirmed.
Cited: Arrenton v. Jordan, post, 100; Glisson v. Herring, 13 N.C. 161; Hampton v. Cooper, 33 N.C. 581; Willard v. Satchwell, 70 N.C. 270; Dawson v. Grafflin, 84 N.C. 102; Cannon v. McCape, 114 N.C. 583.
(19)