Opinion
(June Term, 1831.)
1. An execution is an entire thing, and must be completed by the hand which begins it. Where a fi. fa. was levied by one sheriff, and a venditioni exponas issued to his successor: It was held that the latter could do no official act under the writ, and was not entitled to commissions.
2. A levy vests a property in personals in the sheriff, to which his executor succeeds. Upon his death or resignation, a distringas against him or his executor is the proper process.
3. But the successor, upon the death of a sheriff, must, at his peril, take notice of a prisoner in custody upon a ca. sa.
ASSUMPSIT, in which the plaintiff declared for the sum of $253, due him as sheriff of the county of Washington, for commissions upon an execution, which came to his hands in favor of the defendant against one Ely.
No counsel for either party.
The defendant pleaded the general issue, and upon the trial, before his Honor, Daniel, J., a verdict was entered for the plaintiff, subject to the opinion of the court upon the following case.
A fi. fa. upon the judgment in favor of the defendant against Ely, first issued to one Garrett, then sheriff of Washington, who levied it upon the property of Ely, and shortly thereafter died, having appointed an executor. Upon the death of Garrett, the plaintiff was appointed his successor, and a writ of venditioni exponas issued to him, directing him to sell the property levied upon by his predecessor. The plaintiff having this writ in his possession, demanded of Ely a bond for the forthcoming of the property levied on by Garrett. This bond Ely refused to give, and insisted that the writ was improperly issued to the plaintiff, and that the duty of collecting the money due upon the judgment (39) on the death of Garrett devolved upon his executor. Upon the plaintiff's threatening to seize the property, Ely complied with the demand, and gave the bond. The plaintiff neither levied the execution nor collected the amount of it. He however, advertised the property for sale, which was prevented by an injunction obtained by Ely, pending which the defendant received his debt directly from Ely. Upon these facts, his Honor set the verdict aside and entered a nonsuit, and the plaintiff appealed.
The writ directed to the plaintiff gave him no authority to seize. Neither could it properly issue to him to command him to sell that which had been seized by his predecessor, because that could not be done without a seizure previously made by himself. A venditioni exponas is predicated upon the effects being in the hands of the officer to whom it is directed. Washington v. Sanders, 13 N.C. 343. This results from the maxim that an execution is an entire thing, and must be completed by the hand which begins it. A fieri facias vests a property in the sheriff who seizes, which satisfies the debt and makes the sheriff himself liable. Hence, he may sell after the return of the writ, and after he is out of office. Clark v. Withers, Ld. Raym., 1072; S. c., Salk., 322. And the process to the new sheriff is a distringas. It follows that upon the death of the old sheriff the property is in his executors; that they become responsible for the debt, and that they may sell the chattels. It is different indeed with a ca. sa., but from necessity, and no farther than necessity carries the difference. Upon the coming in of the new sheriff, the old one must deliver the prisoners, and give notice of the executions wherewith they were charged, or he remains liable. But upon his death the new one must, at his peril, take notice and the custody of them, because he is the keeper of the goal, and there is nobody except him entitled to keep them there. Westby's case, (40) 3 Rep., 71, 72. But the law has provided no rule for the delivery over of property in the hands of the old sheriff. We must conclude, then, from the reason of the thing, that it devolves on the representatives of the deceased sheriff, who are responsible for it. And to that effect it is pointedly laid down by Lord Mansfield, in Cooper v. Chitty et al., 1 Wm. Bl. Rep., 65.
We think, therefore, that the plaintiff is not entitled to commissions, because he did nothing, and could do nothing officially, upon which kind of acts alone his commissions arise.
There is no count on a quantum meruit which would have let in evidence of a request from the defendant, and entitled the plaintiff to the worth of his actual labor. But the declaration is for commissions, as fees of office, and to them there is no right.
PER CURIAM. Judgment affirmed.
Cited: Tarkington v. Alexander, 19 N.C. 89.