#### Wilson v. Stokes and Betts.

October, 1815.

i. Sheriffs* — Motion against — Demand by Attorney— Sufficiency to Sustain notion,† — It seems that since the attorney at law, who prosecutes a suit and obtains judgment, has full power to receive the money recovered when levied by execution, (see Branch v, Burnley, 1 Call, 147,) a demand made by him of the sheriff by whom it is levied, is sufficient to authorise a motion against such sheriff for nonpayment.

See Rev. Code, lstvol. ch. 151, sect. 51, 53, 305, 306.

A motion was made in the Superior Court of Pittsylvania, by the appellees against the appellant, sheriff of that county, for the money made on an execution sued out by them against one William Hamlett, which was levied by Richard Jones, deputy of the appellant, and by him returned “satisfied.” The defendant filed exceptions, stating the evidence on both sides.

*The attorney at law, who prosecuted the suit for Stokes and Betts against William Hamlett, shortly after the return day of the execution, applied to the deputy, Jones, for payment, and was by him referred to another deputy, William Clarke *;*on application to whom, he refused payment, unless the attorney would allow him to retain the amount of a fee bill, which the attorney would not discount, and which - the court decided the sheriff had no right to retain. This fee bill is not spread upon the record, nor described. The attorney, besides his authority as such, had a written sealed power from Stokes and Betts to collect this debt; the acknowledgment of which power was proved by a witness, who was present at its execution; but the subscribing witness, though alive and resident in the commonwealth, was not produced. Of this written authority, the deputy Jones was apprized at the time of the demand of payment; but it was not inspected by him, nor by Clarke,, nor by the high sheriff; nor did Jones, at the time of the demand, make any objection to the attorney’s authority to receive the-money. Stokes and Betts did not reside in Pittsylvania, nor had any known agent therein ; nor did the attorney reside there, though he practised regularly in the courts, of that county. And his authority to collect this debt had never been revoked.

Such being the evidence, the court, “without considering whether the written authority was sufficiently proved or not, held, that the demand by the attorney at law, entitled Stokes and Betts to this motion and gave-judgment for the amount of the execution, with 15 per centum per annum interest, from the return day, (subject to a small discount,) and costs: whereupon the defendant appealed.

*

Sheriffs. — See monographic *note*on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.

†

Same — Motion against — Demand by Attorney — Sufficiency to Sustain Motion. — Where an execution is delivered to the sheriff of a county other than that in which the creditor resides, and the creditor employs an attorney at law, practising in the sheriff’s county, to collect the money, without however giving the attorney a written order, and then the attorney makes a demand of the money from the sheriff, such demand, if no objection be made" at the time to the authority of the attorney to receive the money, is, notwithstanding the statute, 1 Rev. Code, ch. 134, sec. 54, a sufficient demand to justify a judgment against the sheriff. Chapman v. Chevis, 9 Leigh 297, 306, citing principal case.

Payments — Authority of Attorney to Receive, — See *foot-note*to Hudson v. Johnson, 1 Wash. 10; monographic *note*on “Attorney and Client” appended to Johnson v. Gibbons, 27 Gratt. 632.

October 26th, 1815, the president pronounced the court’s opinion that the judgment be affirmed.