#### JESSE R. SILER v. ARTHUR BLAKE adm’r. of DANIEL BLAKE.

A sheriff is not entitled to commissions upon a *fieri facias,*though the defendant pay the money to the plaintiff while *thefi.fa.*is in his hands, if-at the time the defendant held no property upon which *the fi. fa.*could be levied.

An appeal will not be sustained where there is no judgment between the parties, nor at the instance of one who is not a party to the cause.

This was a Scire Facias, to subject the defendant’s own goods to the payment of a judgment obtained against him for a debt of his intestate. No pleas were put in by the •defendant; but certain facts agreed were submitted to his Honor Judge Settle, at Macon, on the last Fall circuit. The facts were as follows : —An execution issued upon the judgment obtained as above stated, directed to the Sheriff of *94Buncombe County, commanding him to make the sum luen-tioned in said judgment, of the goods and chattels of Daniel Blake deceased, in the hands of his administrator Arthur Blake. There were no goods and chattels of the intestate in the hands of the administrator on which the execution could be levied, but the proceeds of the goods and chattels of the intestate sold by the administrator were then in his hands. A few days previous to the return day of the execution, and while the *fieri facias*was in the hands of the sheriff, the administrator paid to the plaintiff the amount of the debt, the administrator agreeing to pay all costs. This payment was unknown to the sheriff at the time he returned the execution. The return was, that there was no property to be found subject to the execution. Upon these facts it was submitted to the court whether the sheriff of Buncombe was entitled to commissions upon the money paid by the defendant to the plaintiff. His Honor decided that the sheriff was not entitled to commissions; whereupon, the transcript stated there was a judgment for the defendant, from which an appeal was prayed and granted.

June, 1838.

No counsel appeared for either party.

Gaston, Judge.

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 *95may be satisfied that neither of these was therein intended. The precept contemplated was then an execution against property, and it might be contended that “ by *such*precept” is to be understood an execution against property *levied.*On the other hand this interpretation is not readily reconciled with the words “ while in the hands of the sheriff.” But however this may be, we cannot believe that the legislature meant to give the sheriff a commission on money paid by the defendant to the plaintiff unless the execution in the hands *of*the sheriff was one by which the collection of the money, had it not been anticipated by the parties, might have been coerced. In the case stated it is agreed as a fact, that the defendant held nothing on which a levy coujd be made, and the sheriff made that return on the execution.

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 *96rendered. The transcript speaks indeed of a “judgment for the defendant, from which an appeal was prayed and grant-ecb” but it does not set forth that judgment, nor who appealed therefrom. Upon comparing the alleged judgment with the subject matter on.which it was asked, we think that we are not warranted in saying that more was done below than to-declare that the sheriff was not entitled to the commissions he asked of the defendant; and as in *this*collateral controversy “the sheriff” is represented as the claimant, we are to understand that *he*has appealed from the determination against *his*claim. Who is the person called “ the sheriff of Buncombe” does not appear — and if it did, we do not know him as a party in this cause. He cannot, therefore, appeal in it.

The Court directs the case to be dismissed, as not being properly before it.

Pek Cukiam. Case dismissed.