20 N.C. 93 | N.C. | 1838
The decision of the court below on the question of commissions is, as we think, correct. The act of Assembly fixing the compensation of sheriffs, (1 Rev. Stat. c. 105, sec. 21,) after giving specific fees for specific services, declares a sheriff entitled to receive “ for selling the estate of an intestate, to be allowed by the Court, not exceeding two and a half per cent; for executing a warrant of distress, or an execution against the body, two and a half per cent, and for all monies collected by. him by virtue of any levy, two and a half per centum, and the like commissions on all moneys that may be paid the plaintiff by the defendant while such precept is in the hands of the -sheriff.” The difficulty in construing the last clause is in ascertaining the meaning of the words “ such precept.” The reference is to the execution meant in the clause, immediately preceding under the words, “ collected by virtue of any levy,” — and as express provision had been made for commissions in executing a warrant of distress and.an execution against the body, we
Although we approve of the decision thus made, we have a difficulty on the transcript in knowing what to do with the case. The record shews a scire facias sued out at the instance of the plaintiff, requiring of the defendant to shew cause wherefore execution should not issue against the defendant’s proper goods and chattels, to satisfy a judgment theretofore obtained against him in his representative character. ■ To this scire facias there are no pleas, so that it is not judicially seen what is disputed between the parties. But a case is stated upon which the opinion of the Court is asked, whether the defendant is liable for commissions claimed by the sheriff of Buncombe County. It does not appear frorn the case, what judgment, upon the agreement of the parties, is to be acknowledged and rendered between ¡them accordingly as the oppinion of the Court may be for or against the defendant upon this claim of the sheriff. If it did, then the judgment would follow that agreement, and be correct or erroneous, as the opinion by which it was to be regulated, might be right or wrong. Where there is no agreement for acknowledging a judgment, then the judgment is the sentence of the law upon the matter contained in the record— and we should say in this case, that there being no plea— nor default taken’for want of plea — any judgment between the parties, as the act of the Court, would be premature, and the course erroneous. Upon the whole however, we believe, that a judgment between the parties has not been
The Court directs the case to be dismissed, as not being properly before it.
Pek Cukiam. Case dismissed.