#### 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 an action for his commissions, *individually,*and not as *administrators.*

The act of 1824, *ch*3. giving to the Supreme Court (he 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.

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 Paxtos, 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 judg*2ment in Randolph County Court against *Samuel Hill,*and *William Hogan*his security,, for $>9,796, on which judgment *& fi.fa.*issued to the plaintiff, who was sheriff °*' R°(;kingham, 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 be attended to by *Hogan,*who was going to Rockingham, without the trouble of attendance on the part of *Gray*<f* *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 authorised by *Gray 8c Harper*to attend to thé' business relative to the execution, and directing him to suspend thé 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 ever issued.

*Matlock*applied to *Harper,*who was clerk of the court, as well as plaintiff in the execution against *Hill,*before *3the payment made by *Hill*to defendants, for a writ of um. *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, A he was ignorant of the fact that *Hill*had payed *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 <Sf Hogan,*ami 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 legatnm,*they have 20s. and *4d.*by statute. *(Jacobs, Verio, Sheriff.)*The statute which gives them poundage is that of 29 *Eli%. ch.*4.; the words of it are, “shall not receive or take for the serving and executing any extent or execution upon the body, lauds, 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 B.*470. 6 *Esp.*JV. *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 step.*1 *Sellon*541. 1 *Salk.*209. 2 *L. Raym.*1212.

The statute which regulates poundage or commissions *4here is the act of 1784, *eh.*223. its words are, Sheriffs may rece‘ve f°r their services the following and no other fees, that is to say, for executing' a warrant of distress, or cxecut|on against the body or goods, two and a half per cent.” 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 he 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 marshall 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 marshall, 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 marshall 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 marshall was entitled to retain commissions on the whole amount levied.

And such is the settled law in our sister states. *Hild-reth*v. *Sands,*(1 *Caine’s Rep.*192.) *Mams*v. *Hopkins,*(5 *Johns.*Rep. 252.) *Scott*v. *Shaw,*(13 *Johns.*378.) *Roswell*v. *jDingley,*(4 *Mass. R.*411.)

It is remarkable that though our statute is in the same language with that of 29 *Elies.*yet in our practice, the levy lor 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.

*5But tliat 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. 11.*411.

*Badger,*for the appellees. —

1. The 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 *Elia. 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 ex¡-ecution, or take the body in execution /or.” The word *“for”*is to be connected with “ levy,” as well as with “take the body in execution;” and then seperating 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 4evy 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 fadas;*and the act of *Mix.*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.

*6But our act of *1794*gives the sheriff his two and a half ^>er cen^> n°t ^01' *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 execution of the precept. He is required to make the money; and if he return any thing else, it is in the nature ot 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 w'hich 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. verbo ‘Fees.”*But to make an extent is the first step in executing the *elegit,*&c. as a levy is in executing *nfi. 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 *Elia,*been *“for execu**7*ting,”*as in ours, instead of *“*shall levy for,” the construction of that statute in regard to a *Ji. 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 *nfi. 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 Hep.*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 *Elia,*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 *Elia,*those decisions do not apply here.

The cases cited from IS *Johns,*and 4 *Mass,*were where the sheriff had fully executed an execution against -the *8body 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 lie 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 bis fees out of it, to indemnity 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 wras 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 wms rendered, or else he must go uni-satisfied.

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 can be maintained at all, it must b,e *9against the defendants in the execution, *Hill <$f*Hogan. Their property was liable for the fees in addition to the "A A 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 moré *descriptib*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 *Elite.*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 *2Qs. “*leviedand 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. *10not 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'Eli»,*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 put entitled to sue for his poundage; our act only regulates the amount of commissions or *11quantum of poundage, and on eyery other point, the En-glisii 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. *& Taunt. ITS.*

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 *Elia,*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 propertylevied 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.

*12The 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 P*aintiff inay 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 *Elia. 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 he 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 *Elia,*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 *13were all clone 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 takeout a *vendi-tioni escponas*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 doné 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 beep rendered, without any reference to this objection, *14and 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.”

Ham., 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 *Eli», 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 100Í. and 6 pence for every 20 shillings over and aboye that sum that he shall so levy or extend and deli* *15ver 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. 1 think the law is founded in justice. The execution had been issued; was levied up-v on 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 eharacters. 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 *16the 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.;

*17Henderson, Judge, —

I agree with my brother Haxx as to the construction of the stat. 29 *Elia,*and our act of 1784; they both mean the same thing as to the sheriff's poundage on a *feri 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 lor 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 pro--eeed tor that, he not having levied any money on the execution, on which condition alone he could levy his poundage on the defendant; tor 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 sup*18port 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 onera-ted. 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 diiferent 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 tor 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 tills Court, which is entirely a Court of errors in law, can makethese.amendments, I cannot conceive. How or where are the new issues offset 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.