Rockingham County NcArchives Court.....Matlock, Vs Gray & Harper 1825
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 21, 2009, 1:55 am

Source: Cases Argued And Determined Supreme Court Of Nc
Written: 1825

DECEMBER TERM, 1825.

MATLOCK v. GRAY & HARPER.

From Rockingham.

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.

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.

The act of 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 
seeme, 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.

This was an action on the Case, brought by the sheriff of Rockingham county, 
against the defendants as administrators of one Solomon Parks. The cause was 
tried below before Paxton, Judge, 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 his security, for $9796, 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, 
informing him that the arrangement which had been agreed upon between them 
(Gray & Harper, and Hogan), relative to the claim against Hill & Hogan, could 
bo attended to by Hogan, who was going to Rockingham, without the trouble of 
attendance on the part of Gray & 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.

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 endorsement 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 endorsed; and 
afterwards Hill having paid to the defendants the sum remaining due, no other 
execution every issued.

Matlock applied to Harper, who was clerk of the court, as well as plaintiff in 
the execution against Hill, before the payment made 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 & Hogan, and on the case as above set forth, the Court gave 
judgment for the defendants, and the plaintiff thereupon appealed to this 
Court.

Gaston, for the appellant — At the common law the sheriff had no fees; his 
right to compensation depends entirely on statutes. By 23 Hen 6, 20 pence is 
given for an arrest; by 2 and 3 Ed. 6. ch. 4. when sheriffs have no tallies of 
reward, they shall be allowed expenses, on petition: on a capias ut legatum, 
they have 20s. 4d. by statute. (Jacobs, Verbo Sheriff.) The statute which gives 
them poundage is that of 29 Eliz. ch. 4.; the words of it are, "shall not 
receive or take for the serving and executing any extent or execution upon the 
body, lands, goods or chattels more than," &c, and under this, it is settled in 
England, that if a sheriff levy an execution on body or goods to the amount, 
and the execution is stopped, becomes unavailing without his fault, or the 
parties settle, he is entitled to poundage. Bingham on Judgments, 226, 227. 5 
Term R. 470. 6 Esp. N. P. Cases 111. 4 Burr. 1981.

It is also held, that he may have an action for them against the person for 
whose benefit he levied. Bingham ut sup. 1 Sellon 541. 1 Salk. 299. 2 L. Raym. 
1212.

The statute which regulates poundage or commissions here is the act of 1784, 
ch. 223: its words are, "Sheriffs may receive for their services the following 
and no other fees, that is to say, for executing a warrant of distress, or 
execution against tho body or goods, two and a half percent." The only 
alteration which it makes in the English law, is in the quantum, and not in the 
nature of the duty, or in sheriff's right or remedy for collecting it. 
Accordingly, in these respects, the law has been here always held to be the 
same as in England. There is no reported case in North Carolina; but three not 
reported have fallen within my own knowledge. The first was the case of 
Hamilton v. Moore, in which the marshal of North-Carolina was allowed his 
commissions after levy, without, sale. Another was a case of the Bank of the 
United States; the bank brought two suits, one against the maker, the other 
against the endorser of the same note; after judgment two executions issued, 
and the marshal, not knowing that they were for the same debt, levied both, and 
commissions were allowed him on both. The last case was, The United States v. 
Hoskins; a judgment to a large amount was obtained against Hoskins, on which 
execution issued, and the marshal levied; afterwards, Hoskins, on settlement at 
the Treasury Department, reduced the debt to a very small sum, and the Chief 
Justice of the United States held that the marshal was entitled to retain 
commissions on the whole amount levied.

And such is the settled law in our sister states. Hildreth v. Sands, (Caine's 
Rep. 192.) Adams v. Hopkins, (5 Johns. Rep. 252.) Scott v. Shaw, (13 Johns. 
378.) Roswell v. Dingley, (4 Mass. R. 411.)

It is remarkable that thcugh our statute is in the same language with that of 
29 Eliz. yet in our practice, the levy for the commissions has always been on 
the defendant's property, over and above the amount of the judgment; the 
practice in England was otherwise (1 Sellon 540), though by stat. 43 Geo. 3, it 
is now made conformable to our practice.

But that this practice of ours does not alter the sheriff's claim on him for 
whose benefit he has levied appears from this, that the law is recognized as 
existing in England, since the statute, that the sheriff may go against the 
plaintiff for his poundage. Bingham 226, 227. And in Massachusetts, where the 
practice is similar to ours, the sheriff's claim is yet on the creditor, for 
the levy is to remunerate or indemnify him. 4 Mass. R. 411.

Badger, for the appellees. — 1. That plaintiff is not entitled to commissions 
at all, because that service for which the act of 1784 gives the commissions, 
has not been performed.

The statute of 28 Eliz. ch. 4, is not, as supposed by the opposite counsel, 
like our statute.

By the former, the poundage is given upon the sum "that the sheriff shall levy, 
or extend and deliver in execution, or take the body in execution for." The 
word "for" is to be connected with "levy," as well as with "take the body in 
execution;" and then separating the expressions which point out the several 
services for which poundage is allowed, the sense of the enactment is this: 
poundage upon the sum that the sheriff shall levy for, or shall take and 
deliver in execution, or shall take the body for. Levy is susceptible of two 
meanings: one is to raise or collect, as, "to levy a tax;" the other, to seize 
or take property in order to raise or collect money, as, "he levied the 
execution," "he levied on a slave." In this latter sense, the word seems to 
have been used in the statute: "levied for," that is, seized, taken or attached 
for; equivalent to "taking in order to sell for" the sum required. This is the 
first act done in executing a writ of fieri facias; and the act of Eliz. having 
given the poundage to the sheriff for this act, the English judges were bound 
to say that the sheriff was entitled if they obeyed the declared will of the 
legislature.

But our act of 1794 gives the sheriff his two and a half per cent., not for 
levying under a fi. fa. not for seizing goods, but for "executing an execution 
against the body or goods." To execute a process is to perform what the process 
commands. But the command of a fieri facias, is, to make the money and have it 
in Court to satisfy the plaintiff. No mention is made of a levy. That is only 
an act done preparatory to the execution of the writ. The levy cannot be 
returned by the sheriff as an excution of the precept, he is required to make 
the money; and if he return any thing else, it is in the nature of an excuse 
for not obeying. If, then, a levy is not executing the writ, and the sheriff is 
entitled only for executing, how can a levy entitle him?

This argument will appear stronger by adverting to that part of the English 
statute which refers to proceedings under writs of elegit and extendi facias. 
The service for which the poundage is there given is expressed by "shall extend 
and deliver in execution." Under these writs the sheriff delivers the property 
seized in specie to the plaintiff, instead of converting it into money as under 
the fieri facias. To extend and deliver in execution, is consequently to obey 
fully the command of the writ, to do all that is required or permitted. It is 
executing the writ.

And it is held, that if the sheriff make an extent, and before the liberate a 
new sheriff is chosen, the new, not the old sheriff, shall have the poundage. 
{Dalton Shff. 526.) Cited Cunningham's L. D. verba "Fees." But to make an 
extent is the first step in executing the elegit, &c, as a levy is in executing 
a fi. fa. The liberate, or delivery of the property extended to the plaintiff, 
is its completion, as the payment of the money raised by the sale of the goods 
seized is the completion of the proceeding under the fi. fa. The extent and 
liberate together in the one case, and the levy, collection and payment in the 
other, are an execution of the process. I infer that, had the expression of the 
statute of Eliz. been "for executing," as in ours, instead of "shall levy for," 
the construction of that statute in regard to a fi.fa. would have been 
different.

Perhaps a reason may be found for the difference between the two statutes. In 
England, when the sheriff seizes goods under a fi. fa. he fixes and returns the 
value of the goods. For that value the defendant is discharged, and for that 
value the sheriff is answerable. He cannot sell under this writ for less, and, 
if he do, he is liable for the difference. Hence, by the levy, the plaintiff 
gains an advantage, and the sheriff incurs a responsibility not known here, 
where the officer must sell at auction for what the goods will bring. And thus 
in England, the compensation is given for making a levy for the debt; with us 
for executing the execution by collecting the debt. But whether this be the 
reason, or whether there be any, the difference between the two statutes 
remains. They are said, on the other side, to be exactly similar. So far are 
they from being exactly similar, that they differ as widely from each other as 
attempt from accomplishment, or commencement from completion. But further: our 
statute gives the commissions only for executing an execution against the body 
or goods. The case states that property was levied on, but not what kind; it 
may be land; it does not appear to have been goods; and therefore it does not 
appear that the plaintiff is entitled.

The opinions cited on the other side from 1 Caine's Rep. and 5 Johns. Rep. were 
constructions of a New York statute, which gives the poundage for "serving an 
execution." And in the latter case, Thompson, Judge, likens that statute to 28 
Eliz. and grounds his opinion upon that resemblance. If, therefore, it has been 
shown that there is no such resemblance, but a marked difference, between our 
statute and that of Eliz. those decisions do not apply here.

The cases cited from 13 Johns. and 4 Mass. were where the sheriff had fully 
executed an execution against the body of a debtor, and of course must have 
been entitled to this compensation if he ever could be. They do not at all 
affect the question now before the Court.

The service not having been performed, the plaintiff has no right to the 
commissions. But if that point is against us we contend,

2. That he cannot maintain an action for them. The settled practice in this 
State, since the act of 1784, has been, that the sheriff collects the 
commissions out of the defendant in addition to the debt, and this practice, 
universal and long continued, has settled the construction of the act. In this 
case the sheriff had levied; had the property in possession; might have sold or 
retained possession until he was paid. In the case cited by the other side from 
4 Mass. the want of any other remedy is relied upon by Parsons, Chief Justice, 
to show that the action was maintainable; and he says expressly, if the sheriff 
could have found property of the debtor, he should have levied his fees out of 
it, to indemnify the plaintiff in execution. In England, the sheriff had no 
other remedy but an action against the plaintiff in execution. Before the 
statute of 43 Geo. 3, he could not collect the poundage out of the debtor; it 
was a charge upon the plaintiff only; and as the statute gave a compensation 
for the service, and no other remedy was provided, it followed from necessity 
that the sheriff should have an action against him at whose instance the 
service was rendered, or else he must go unsatisfied.

If it be said, the sheriff was, in our case, prevented from selling by the 
defendants, we answer, first, that the fact is not so; the case shows only a 
permission to delay the sale if the sheriff pleased, not a command to forbear; 
and secondly, if there had been such command, the sheriff was not bound to 
regard it; he had a right to retain possession, and sell, unless his fees were 
paid; and it was his own folly to forbear.

3. If an action may be maintained at all, it must be against the defendants in 
the execution. Hill & Hogan. Their property was liable for the fees in addition 
to the judgment. They have been relieved by the suspension of the sale; Gray 
and the others have derived no benefit; they have neither collected nor 
retained the commissions, and ought not to be made to pay them.

4. The defendants, if liable, are liable in their own right, and not as 
administrators. But the action is brought against them in their representative 
character, and if a recovery is effected it will be a charge upon the funds of 
their intestate. Yet clearly it was no debt or demand against the intestate. 
When it is said the action is against the defendants as administrators, 
reliance is not placed on the defendants being called administrators in the 
writ; that may be rejected or be considered a mere descripto personarum. But 
the statement of the case which presents the questions to this Court, says, 
expressly, that the action was brought against them as administrators. If, 
then, they are not liable in that character, the plaintiff cannot have judgment 
in this action.

Gaston, in reply.—The first question made is, has the sheriff a right to the 
commissions? It seems to be conceded that this point is with the plaintiff; if 
the service required by our act of 1784, to entitle to commissions, be the same 
with that which in England give such a right. It is the same; the statute of 
Eliz. enacts, that "it shall be lawful to receive in recompense for serving and 
executing an execution or extent, twelve pence for every 20s. that he shall 
levy, or extend and deliver in execution, or take the body in execution for." 
The act to be recompensed is "serving and executing," the quantum is twelve 
pence on every 20s. "levied;" and even if the phrase levied, be understood as 
meaning "taken in execution," it is used not where the service is mentioned, 
but the fixing the quantum.

But the word levy is used in connexion with money not execution; and money 
levied, means in common and legal parlance money raised or made. The word levy 
is defined by Johnston, to raise men, to raise money, to make war; and in law 
it signifies to collect or exact money. Jacobs, Verbo Levy. Impey's Shff. 153, 
1 Caines 195.

But it is contended that the last case cited is inapplicable, because the 
statute of New York differs from ours. The words of the New York law, are, 
"serving an execution for such an amount, such a per cent. on the sum levied."

Now, serving an execution, can mean nothing but performing the service which it 
commands, i. e. causing the money to be made; and the reason of the last 
proviso in the New-York statute is given by the court, "lest the sheriff might 
take poundage upon the sum contained in the body of the execution."

But it is objected that in England, the value of the goods taken is returned by 
the sheriff; here the value is ascertained by a sale. In the case before the 
Court, the jury have found that goods were taken to the value of the debt; and 
this same objection was made unsuccessfully to the claim for poundage in the 
case of an elegit. 2 L. Raym. 1212. Farther, here, as in England, if goods be 
taken to the value, the defendant is discharged, and the sheriff has precisely 
the same liability; nor is it true that in England, by a return of goods taken 
to such a value, the sheriff is charged with the debt. 1 Sellon 529, 530. 2 
Show. 89.

The second question made is, can the sheriff, after taking goods in execution, 
maintain an action for his poundage, if the defendant pays the plaintiff? Under 
the statute of Eliz. it is plain that he may, but it is said to be otherwise 
under the act of 1784. A comparison of our statute with that of England will 
show that the compensation given by both is for the same service. Before our 
act of 1784 was enacted, by the English statute the sheriff was in the case but 
entitled to sue for his poundage; our act only regulates the amount of 
commissions or quantum of poundage, and on every other point, the English 
statute is still our law. It is, however, urged, that, as in England, on a 
judgment on simple contract poundage, is not collected from defendant's 
property, and as with us on all judgments it is, that therefore with us, the 
creditor is not liable for it to the sheriff. This is in effect to say, because 
the creditor may be indemnified, he shall not pay for services rendered, but if 
he cannot be indemnified he shall pay.

There cannot be found a decision, or even a dictum, to support this principle. 
It cannot be shown that, in England, the creditor is not liable, where (as in 
judgments for penalties) he gets his debt exclusive of poundage. The sheriff's 
right as against the plaintiff is not changed in England by reason of the 
statute 43 Geo. 3.    Bingham 226; and one of the decisions relied on, is since 
that stat. Bingham 226. 6 Esp. 111. The stat. 43 Geo. 3, was intended to give 
the plaintiff the costs of the execution. 2 Taunt. 175.

But it was said that the sheriff might have refused to postpone sale unless his 
commissions were paid, and that he may yet sell. If this be correct, it is no 
answer to our claim. He may do the same in England. Bingham 227. But if he was 
then entitled to demand his commissions, how has he lost the right since? The 
position, however, is not correct; the whole judgment, debt and costs, belongs 
to the plaintiff; he can release it altogether, and he alone has any control 
over it.

The statute of Eliz. and our own act, should be construed liberally for 
sheriffs. 2 L. Raym. 1212. Cro. Car. 286. 1 Salk. 333.

It was said, that commissions were allowed by our statute only on sale of 
goods; that here it did not appear that the property levied on was not land. In 
our practice, no question was ever made but that the sheriff should have 
commissions, whether he sold land or goods. The last objection is to the form 
of action. The action is for services rendered to the defendants as 
administrators, for the benefit of the estate they represent, and plaintiff may 
charge them as promising as administrators. Had the sheriff in this transaction 
received what was due to them, they would have sued for it as administrators. 6 
East 405. See Chitty 61. 3 Wentworth 71.

On a subsequent day Gaston requested of the Court to take into consideration 
the question, whether the objection to the form of action could be removed by 
an amendment under the act of 1824, ch. 3, giving to the Supreme Court power to 
amend proceedings in the County or Superior Courts.

Taylor, Chief Justice.—The act of 1784, which is the only one in force relative 
to sheriff's commissions, entitles them to two and a half 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 the 29th Eliz. ch. 4, which are levy or extend and 
deliver in execution. Those 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 Eliz. 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 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 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, s. 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."

Hall, Judge.—The act passed in 1784, New Rev. ch. 223, allows to sheriffs two 
and a half 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 the 28 of Eliz. ch. 4, it is declared that it shall not be 
lawful for any sheriff, &c., to receive or take of any person, &c., for the 
serving and executing of any extent or execution upon the body, lands, goods or 
chattels of any person, &c., more, &c., than in this present act shall be 
limited and appointed, &c., that is to say, 12 pence for every 20 shillings 
when the sum exceeded not 100l. and 6 pence for every 20 shillings over and 
above that sum that he shall so levy or extend 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 devisible; 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 farther 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.

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 the 2d section 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 farther on, 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.

Henderson, Judge.—I agree with my brother Hall as to the construction of the 
stat. 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 the 43d 
of Geo. 3, 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. 3. However, it is founded on 
practice, and the Court will not now disturb the practice.

As to the defendant's being liable to this action at the suit of the sheriff, I 
am at a loss for a principle to support it; the law 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 endorsed 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.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

File at: http://files.usgwarchives.net/nc/rockingham/court/matlock1389gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 35.9 Kb