#### C. L. Burckmyer, Administrator, *vs.*E. M. Beach.

A. tos the assignee, and B. the agent for the creditors, under an assignment for the benefit of creditors. The sheriff, under a judgment and execution older than the assignment, in favor of a firm of which A. was a member, the validity of which was contested by B. for the other creditors, sold the goods of the assignors, and, after a decision of the Circuit Court of Law sustaining the judgment as valid, and pending an appeal therefrom, paid the proceeds to the plaintiffs in execution, under a bond of indemnity. Bending the appeal, but after the payment by the sheriff, B. died, and when the appeal was heard the judgment was set aside as void. After the judgment was set aside, A. acknowledged the receipt of the money as assignee, by subscribing his name, with the date of such subscription, to the receipt originally given to the *sheriff:*— Held, that A. could not be considered as having received the money as assignee-until his acknowledgment thereof by signing the original receipt, and, therefore, that B., who was then dead, was not entitled to one half the commissions on receiving, allowed by the Act of 1828.

BEFORE WARDLAW, OH., AT CHARLESTON, JUNE, 1853.

Wardlaw, Off. The plaintiff excepts to the master’s report, because the master refused to allow to plaintiff commissions on *488tbe sum of fifteen thousand three hundred and five dollars and eighty-one cents.

Defendant is assignee of Dickson & Mills, and plaintiff’s intestate was agent of the creditors of that firm, under the Act of 1828, 6 Stat., 3G5, until his death, July 1, 1848. The sixth section of the Act gives to assignees and agents, as compensation for their trouble and labor, commissions of five per cent on receiving, and two and a half per cent, on paying, to be equally divided between them, viz: one-half to the assignee or assignees, and the other half to the agent or agents. 0. Mills & Co., of which firm defendant is a partner, entered up a judgment for a large sum against Dickson & Mills on February 12, 1848. Two days afterwards, Dickson & Mills assigned all their estate to defendant in trust for creditors; and on 23d of same month, at a meeting of the creditors, plaintiff’s intestate was appointed agent. This meeting rejected the vote of defendant for agent, although he represented the largest creditors, 0. Mills & Co., and on this ground the defendant now insists, that plaintiff’s intestate was not lawfully appointed agent, as the Act in the appointment requires a majority in the amount of debt represented to govern. If this rejection proceeded on the ground that defendant was assignee, it seems to me clearly erroneous, for there is nothing in the Act, nor in principle, to hinder an assignee from representing creditors in the appointment of an agent. But the defendant is now estopped from disputing intestate’s office by repeated recognitions thereof in proceedings in law and equity, and in matters *in pais.*Soon after the appointment of agent, proceedings were instituted at law to set aside the judgment in favor of 0. Mills & Go., and in equity to set aside the assignment to defendant, and these proceedings resulted in setting aside the judgment, and sustaining the assigment; but during the life of the agent, both judgment and assignment remained apparently of force. The sum of money above mentioned upon which the plaintiff claims commissions, came into the Sheriff’s hands by *489sale of the stock of Dickson & Mills, under the *fi. fa.*of 0. Mills & Co., and was paid over by the Sheriff to the latter firm on May 16, 1848, upon a bond of indemnity. In May, 1849, after the decree of this Court sustaining the assignment, defendant gave to the sheriff a formal receipt as assignee, and on 26th of the following month, he paid to 0. Mills & Co., and other creditors of Dickson & Mills, their dividends of the assigned estate.

Commissions are earned only upon the receipt and payment of money, and the real question upon plaintiff’s exception is, whether defendant, as assignee, received and paid the sum above mentioned in the lifetime of the agent. Defendant received the money while the agent was living, but he insists that he received it in the character of a judgment creditor, and not as assignee. It is true, that at the time of receipt, he ostensibly was a judgment creditor; but by the judgment of the Court of Law annulling the judgment of 0. Mills & Co., necessarily retroactive, he did not in fact sustain that character, and he must be considered as receiving it as assignee. The assets received by him belonged to the estate of which he was assignee; and as they were not lawfully received by him as special creditor, the presumption of law is, that he received them in the character which gave him title to receive. Whenever one does a lawful act, although he may have no right to do it in the character assumed and expressed by him in the performance, from the presumption against intentional violation of law he is supposed to do it legitimately in the execution of his proper office. Thus, if one convey an estate supposing erroneously himself to be entitled in his own right, whereas his title is as executor or trustee, his conveyance at law will be referred to the character in which he has title; and in this Court the same effect would be given, subject to exception from circumstances of fraud, mistake, accident or other equitable matter. I am of opinion, that defendant, in legal contemplation, received as assignee the sum of money in question, so as *490to entitle tbe intestate to commissions on receiving. But I tbink plaintiff’s intestate had no right to commissions for paying out the sum. The sums received by the assignee were not, in fact, apportioned among the creditors, nor dividends paid to any of them until after the death of plaintiff’s intestate; and although 0. Mills & Co. were entitled in the event to a larger sum than that in question, it would be pressing a fiction of law to an inequitable extent, to hold that the assignee paid to himself at the time of receipt, the proportion to which his firm was ultimately entitled.

The third exception of plaintiff, that the trust of his intestate, as agent, abides in him as administrator, has no foundation in principle. That trust was strictly personal, and by the terms of the Act, revocable at the will of the creditors.

It is ordered and decreed, that the report be re-committed to the master to be reformed, and upon the principles of this opinion.

The defendant appealed from so much of the decree, as held that the payment made by the sheriff to 0. Mills & Co., was in legal contemplation a payment to the defendant as asssignee, so as to entitle the intestate to commissions on receiving the fund, upon the grounds :

*First.*Because, the sheriff having parted with the fund to 0. Mills & Co. under a bond of indemnity, to return it if the judgment was determined to be invalid, the money must be regarded in law, as-it was understood at the time, as remaining in the hands of the sheriff, not only until the question as to the validity of the judgment of 0. Mills & Co. *vs.*Dickson & Mills was judicially settled, which was long after the death of complainant’s intestate, but until the decree of the Court of Equity was filed, sustaining the assigment, when the assignee received the money from 0. Mills & Co., and gave a receipt to the sheriff for it, who then cancelled the bond of indemnity.

*491*Second.*Because, although the defendant was one of the firm of 0. Mills & Co., and the sheriff permitted them to receive the money as judgment creditors, under said bond of indemnity, that act could not be regarded in law or equity as a payment to an individual member of that firm in a fiduciary capacity, for the assignee had no right or power to touch the fund as assignee, or even to deposite it in the Bank of the State, as assignees and agents are required to do, under the Act of Assembly.

*Third.*If the fund was not in legal contemplation in the hands of the sheriff, still, the judgment of 0. Mills & Co. *vs.*Dickson & Mills was sustained by the Circuit Court, and was good until it was decided otherwise by a majority of the Appeal Court which was after the death of the complainant’s intestate, so that the possession of the fund by 0. Mills & Co., as judgment creditors, was lawful, and the retroactive operation of the decision only affected the disposition of the fund, and not the possession of it, before the said judgment was declared to be invalid.

*Fourth.*Because, the fund was legally withheld from the defendant, as assignee, when he applied for it to the sheriff in that capacity, until the rights of all concerned were judicially settled, and the assignee himself, earned no commissions until he gave his receipt to the sheriff-for the money, nine months after the death of the intestate.

Dwnkin, *Brewster,*for appellant.

Pressley, contra.

So much of Mr. Dunkin’s argument, which was in writing, as relates to the effect of an appeal as a *supersedeas,*is as follows :

*492The appellant would submit, that the judgment of the Appeal Court of Law setting aside the judgment of 0. Mills & Co. is not retroactive so as to charge Beach as assignee with the receipt of the money, at the time of payment to 0. Mills & Co.

To charge Beach, the payment to 0. Mills & Co. in May, 1&48, by the sheriff, must have been unlawful — if lawfully paid the appeal decision is not retroactive.

The Circuit Court sustained the judgment of 0. Mills & Co., and their right to receive the money was perfect unless suspended by an appeal or stayed by an injunction. As there was no injunction in this case our inquiry is limited to the effect of an appeal. If there had been no appeal the sheriff must of necessity have paid to the plaintiffs in judgment; the chief question then is : *Does an appeal operate as a supersedeas f*or was the payment by the sheriff to 0. Mills & Co. pending an appeal unlawful ? Before examining this question it should be remembered that there was *no special order*prohibiting the payment of the money by the sheriff, — the special order made by Judge Wardlaw expired by its own limitation (to 2d Monday in May,) before the payment by the sheriff, which was on 16th May, 1848.

Th'e first authority submitted upon this question is the ease of *Dell*vs. *Ball,*1 Rich. Eq. 361. In this ease the master, Mr. Gray, reports that in obedience to the directions of the decree of Ch. Johnston, he had advertised the sale of the land and negroes; notice of appeal was given and suspension of proceedings required by appellant; the appellee took the ground that the appeal does not suspend the execution of the order.— The following is the language of Oh. Johnston in the Circuit decree : “ Upon the authority of *Biggs*vs. *Murray,*(3 Johns. Ch. 160,) and the cases therein quoted, I take it to be pretty clear that an appeal does not suspend the execution of a decree; that until reversed it operates as a full authority to the officers acting under it; and that in fact a special order is necessary to suspend it, which will only be granted by the Court in the exer*493cise of a sound discretion with reference to circumstances.” And again p. 367 : “ It may be that upon an application for an order to suspend proceedings, this Court might more readily grant such an order, where, from a consideration of the points involved, it might he impressed with the conviction that the decision was doubtful.”

I would also cite *Thomas*vs. *Tates,*1 McMullan, 179.— This was an action against sheriff for the penalty under A. A., 1796, for not paying money collected within ten days after demand. *Held,*that sheriff was justified, he having been notified by attaching creditors of defendant in execution not to pay over as they intended to file a suggestion to set asido plaintiff’s judgment as fraudulent and void. The reference is chiefly for the inference from the reasoning of the decision as more pertinent to the present inquiry. Does it not clearly indicate what would have been the action of the Court, if the sheriff *had*paid the money ? In the Circuit decision against the sheriff the argument is urged that the order for leave to file the suggestion “ was not accompanied as usual by order restraining sheriff from paying the moneyand that although a bill was filed to set aside the judgment and for an injunction, yet no injunction was ordered until after sheriff’s liablity had been incurred. In the appeal decision, per Butler J., we find that in the original question between the judgment and attaching creditors, the Circuit Court decided in favor of the attaching creditors. The Appeal Court reversed the decision.

Considering the facts, the Court, in sustaining the position of sheriff Yates, exercises the significant precaution of saying by its organ, p. 186, “ *I do not undertake to say that the sheriff may not have been justified in paying to the plaintiff the money when*demanded,” and proceeding states, that sheriff’s conduct' “received the sanction of Ch. Harper whose decree should be regarded as a virtual protection for the defendant. When the Chancellor took cognizance and jurisdiction of the matter, his decree should be considered as acquitting the defendant of all *494wilful wrong and rescuing him from legal liability. For suppose the Circuit decree had been affirmed instead of being reversed, would it be pretended that the action could have been maintained ?”

Consider this case. In *Mills Qo.*vs. *Dickson $ Mills,*6 Rich. 490, on Circuit, Wardlaw, J., declined to “interfere upon the application of one who was no party before him as his interference could only amount to a declaration of opinion — he could make no effective order — certainly not an order for the sheriff to pay the money to Mr. Burckmyer, who is represented to be the agent of creditors.” Did not this virtually sanction the course of the sheriff in paying the money to 0. Mills & Co. ? Would not this protect the sheriff from legal liability? For suppose the Circuit decree had been affirmed instead of being-reversed, would it be pretended that an action could have been maintained?

The next case to which I would refer is *Ives*vs. *Lucas*<f* *Thompson,*11 E. C. L. R., 298. This was an action of trover against sheriff for wrongfully detaining plaintiff’s horse; under *fi. fa.,*15th September, 1822, sheriff sold the horse; an order of Justice Bayley, dated 17th November, setting aside the judgment for irregularity, was put in evidence. Park, J., non-suited the plaintiff, “ *because as long as the judgment existed*it protected the sheriff, and no evidence was given that sheriff had horse in his possession later than 15th September, and the judgment was not set aside until 17th of November.— Vaughan, Sergeant. — Does not your Lordship think that the setting aside the judgment makes the sheriff’s act tortious by relation.” Park, *J.*— Certainly *not.*

Your Honors are also referred to Peter’s Rep. U. S. 6 vol. p. 8, *Bank of United States*vs. *Bank of Washington.*In this case held — “It is a settled rule of law that upon an erroneous judgment, if there be a regular execution, the party may justify under it, until the judgment is reversed, for an erroneous judgment is the act of the Court.-” In this case the money *495had been paid before the writ of error was allowed, but the party had giren notice of his intention to take it out before the money had been paid. At page 17, the Judge, in delivering the opinion of the Supreme Court, says, “ If the bare notice or declaration of an intention to bring a writ of error will invalidate what is afterwards done, should the judgment at any future day be reversed it would virtually in many cases amount to a stay of proceedings on the execution; no such rule is necessary for the protection of the rights of the parties. The writ of error may be so taken out as to operate as a super-sedeas ; or if a proper case can be made for the interference of a Court of Chancery, the execution may be stayed by injunction.”

It may be urged that as to the effect of an appeal there is a distinction between administrative and judicial orders — interlocutory and final. In *Pinckney*vs. *Senegan*Jones, 2 Strob. 255-6-7, O’Neall, J., held that *every*order operates upon the matter to which it is addressed in a way to *injure or henejit*the parties and may *affect materially their rights;*and hence concludes that there is no ground on which the right of appeal on even interlocutory orders can be denied. In this case *held*that the *appeal did not operate as a super-sedeas ;*by the general admission of the Court through Judge O’Neall, this order must have operated to injure or benefit the parties and the Court upheld the right of appeal; what practical reason precludes a general application ? It is resolved into a matter of judicial discretion, what harm clogs its exercise? if the ultimate decision of a case was doubtful the Court would promptly grant a *special order*to suspend proceedings. From the reasoning of the authorities may not the conclusion be drawn, that a *mere*appeal would not operate as a supersedeas, but to have that effect there should be a *special order*restraining the sheriff from proceeding, or the *ji. fa.*should be stayed by injunction. The practical effect of such construction by the Court would be beneficial, it would operate *496as a wholesome cheek upon frivolous appeals; the anomalous appeal “for time,” a formidable abuse grown into common use would be consigned to merited oblivion, and the true spirit of equity would be observed in facilitating and not retarding the enforcement of right. But even if this construction was doubtful as between the original parties, yet in a case like this before us, where a third party, an outsider, fails in his motion on Circuit to set aside the judgment between the original parties, the reasoning and the expediency are more cogent and conclusive against the supersedeas of a bare appeal.

The opinion of the Court was delivered by

DaRGAN, Ch.

Some time in the year 1848, S. D. Dickson and Samuel S. Mills formed a partnership, under the name and style of Dickson & Mills, for the purpose of carrying on business as grocers, and vendors of provisions, in the City of Charleston. In the year 1848, the said Dickson & Mills, being then insolvent, the latter confessed a judgment in the name of the firm of Dickson & Mills to Otis Mills & Co.,, for upwards of thirty thousand dollars. Of the company last named, Beach, the defendant, was a member. On this confession, judgment was signed, and a writ of *fieri facias*lodged with the sheriff, on the 12th of February, 1848. Two days afterwards Dickson & Mills made an assignment to E. M. Beach of all their effects, consisting principally of their stock in trade, for the benefit of certain creditors named in the assignment. Otis Mills & Co. were prefered creditors, under the provisions of the assignment.

On the 28d February, A. D. 1848, at a meeting of the creditors of Dickson & Mills, called by the assignee, Cornelius Burekmyer, the plaintiff’s intestate, was appointed the agent of the creditors, in pursuance of the provisions of the Act of Assembly, A. D. 1828. He continued to act as such agent until his death, in July, 1848.

*497On the 12th February, 1848, a writ of *fieri facias*was lodged with the sheriff in the case of O. Mills & Co. *vs.*Dickson & Mills, and on the same day the sheriff proceeded to levy on the goods of the defendants in execution, consisting of their, stock in trade, and constituting a large portion of the assigned effects. Yery soon afterwards, Cornelius Burckmyer, the agent of the creditors, and acting in their behalf, made an application to one of the Law Judges (Judge Wardlaw,) to set aside and vacate the execution, for certain alleged irregularities not now necessary to be considered. He suspended the execution until the May Term following, (1848,) at which time the motion was renewed before him, and was refused. From this decision an appeal was taken, which was heard at January Term, 1849, when the decision of the Court below was reversed. By the judgment of the Court of Appeals the execution was declared invalid and was set aside.

On the 12th February, 1848, the sheriff levied on the goods, and the said goods being of a perishable nature, and liable to waste if the sale was delayed, which might be adverse to the interests of all the conflicting claimants, it was agreed upon by all the parties in interest, that notwithstanding the pendency of the litigation, the sheriff should proceed to dispose of his levy by an immediate sale of the goods, without prejudice to the rights of any. Under this agreement, the sheriff *did,*on the 12th April, 1848, proceed to sell the goods levied on by him under the execution, and the proceeds of sale nett over fifteen thousand three hundred and five dollars and eighty-one cents.

On the 15th June, 1848, E. L. Adams and others, creditors of Dickson & Mills, filed their bill in the Court of Equity, to set aside the assignment, on the allegation of fraud. On the hearing of the cause, the assignment was held to be valid, and the bill was dismissed.

The foregoing statement is made with a view to a better apprehension of the question now before the Court. The present *498case relates only to a controversy about commissions between the assignee, E. M. Beach, and the agent of the creditors for whose benefit the assignment was made, which agent, as has been already stated, was the plaintiff’s intestate.

The sixth section of the Act of 1828, gives to the assignees, and the agent of the creditors, as compensation, five per cent, for receiving, and two and a half per cent, for paying, to be equally divided between them. As I understand the Act, the agent, or agents, are entitled to half of the commissions, and the assignee, or assignees, to the other half.

The gravamen of this bill is, that the defendant, the as-signee, has appropriated to himself more than a due share of the commissions; and that he has refused to account, and to pay over to the plaintiff the just share to which his intestate is entitled. The prayer is, that the defendant be decreed to account, and pay to him the share of said commissions to which his intestate is entitled. The defendant denies the claim of the plaintiff to the extent of the demand which the plaintiff sets up. He admits a small balance in his hands due the plaintiff on account of commissions, which the Master in his report states to be sixty dollars and eighty-five cents. This the defendant has tendered, but it has been refused unless the whole claim was allowed and paid.

This contest relates solely to the commissions which have accrued, or should accrue, on the sum realized by the sheriff on his sale of the goods levied on by him as aforesaid, which sum eventually came into the hands of the assignee, and was distributed by him among the creditors according to the provisions of the assignment. This may be considered as a mixed question of law and of fact; and the rights of the parties must be determined by the construction which the Court shall put upon certain facts. There are certain prominent facts about which there is no doubt, which must govern the judgment of the Court.

There is no doubt, that the sheriff levied on the goods under *499the *fi. fa.*in favor of 0. Mills & Co. Having thus possessed himself of the goods, it is equally certain that he sold them under and by virtue of the execution. The Master so reports the fact to be. He says “ that 0. Mills & Co. entered up their judgment against Dickson & Mills, on the 12th February, 1848, and under a *fi. fa.,*on that judgment, the stock of goods of Dickson & Mills was sold by the sheriff, on the 12th of April, 1848.” The Chancellor, in the statement accompanying his decree, says, “ the sum of money abovementioned, upon which the plaintiff claims commissions, came into the hands of the sheriff by a sale of the stock of Dickson & Mills, under the *fi. fa.*of 0. Mills & Co.” The sheriff, who was a party defendant to the bill of E. L. Adams and others, filed for the purpose of setting aside the assignment, broadly asserts the same fact.

There is another fact, which is equally clear, namely, that the sheriff paid this sum to 0. Mills & Co. as plaintiffs in that execution. The Master, and the Chancellor, both concur in so reporting. The former says, “ that on the 16th May, 1848, the sheriff, after taking a bond of indemnity, paid over to the plaintiffs in the judgment the nett proceeds of the sales, viz.: fifteen thousand three hundred and five dollars and eighty-one cents.” The Chancellor says, the sum of money realized on the sale by the sheriff, made under the *fi. fa.*of 0. Mills & Co., was paid over to the latter firm on 16th of May, 1848, on a bond of indemnity. The receipt taken by the sheriff was after this manner. The names of the parties to the execution was stated after the usual form, and a receipt for the money was given by Bailey & Brewster, plaintiffs’ attorneys, and the money was received by them. They immediately afterwards paid it over to 0. Mills & Co. the plaintiffs in the execution.

After the execution was set aside, which was by the judgment of the Law Court of Appeals, at February Term, 1849, and after the dismissal of the bill filed by E. L. Adams and other creditors of Dickson & Mills, to set aside the assignment, (which was held valid by a decree of the Court of Equity, filed *50018th May, 1849,) the sheriff recognized the right of E. M. Beach to receive the money as assignee. The bond of indemnity, which he had taken from 0. Mills & Co., when he paid them the money, was given up to be cancelled. And he required E. M. Beach, as assignee, to subscribe his name to the receipt which had been previously given to him by Bailey & Brewster, which was done, and this signature bears date the 18th May, 1849.

Between this date, and the date of the sale by the sheriff, (which was on the 12th April, 1848,) the plaintiff’s intestate, the agent of the creditors, died. He died on the 1st day of July, 1848. And the question is, whether under these circumstances, the agent would be entitled to receive commissions upon the money so received by the assignee.

I think the Chancellor has correctly stated the case, when he says, *“*Commissions are earned only upon the receipt and payment of money, and the real question upon the plaintiff’s exception is, whether the defendant, *as assignee,*received and paid the said sum of money in the lifetime of the agent.” That he did not so receive it in the lifetime of the agent, is clear from the undisputed facts which have been mentioned. But the Chancellor proceeds to put a construction upon those facts, which imparts to them a different aspect, and would give them a different operation from that which they are entitled to have. He thinks, that although the assignee did no act in the lifetime of the agent, which purported to be a receipt of the money in his character as assignee, yet he must be considered as having done so. He argues, that inasmuch as Beach received this money on an execution in which he was plaintiff, and which was afterwards set aside, and decided to be invalid, the payment to him by the sheriff must be referred to his legitimate authority to receive the money, which was as assignee; and that this having been done in the lifetime of the agent, therefore the agent was entitled to commissions on said payment. But in this reasoning, one very important fact is left out of *501view. The payment by the sheriff, on the 16th May, 1848, was not made to Beach personally, and individually, but to Otis Mills & Co. I am far from assenting to the logical correctness of this reasoning, even if Beach had stood alone as the plaintiff in the execution. But how can a payment to Otis Mills & Co., on an execution under which they claimed, though Beach was a member of the firm, be considered a payment to Beach as assignee? Beach had no right to appropriate the funds of the company to objects not falling within the scope of the partnership, without the assent of Mills. So far from agreeing to this, 0. Mills & Co. had withdrawn the money from the hands of the sheriff as their own funds, giving a bond to pay it back to the sheriff in event that the proceeding to set aside the execution should be decided against them.

It has been suggested, that inasmuch as the money received by 0. Mills & Co. did eventually go into their hands as creditors under the assignment, it should be considered as thus paid to them at the date of their receipt to the sheriff, (which was during the life of the agent,) and that therefore he should be entitled to his commissions. But this appropriation of the fund did not take place until after Beach, as assignee, had given another receipt or acknowledgment to the sheriff. And it appears to me that it would be a great distortion of the facts to consider the payment to 0. Mills & Co. a payment to Beach in his character as assignee.

It has been further argued that the Act does not give the commissions jointly to the assignee and agent, but a moiety to each. And that Beach, having received in his settlement with the creditors the whole of the seven and a half per cent, allowed to the agent and the assignee, must be considered ashaving received the excess over what he was entitled to charge, for the agent, and that he cannot now refuse an account to the agent for his half of the commissions. Whether this be the true interpretation of the Act, I am not prepared to say. It is certain that Beach retained the commissions which he charged *502for his own benefit. It does not help the plaintiff’s case to show that Beach received more commissions than he was entitled to charge. That was a question between him and the creditors. As to the plaintiff’s claim, the question still recurs, whether the agent has earned his commissions, and that depends on the fact whether the money was paid to the assignee in the lifetime of the agent. If this state of facts does not exist, either actually or constructively, it is admitted on all sides that the plaintiff’s claim is unfounded.

It appears from the report of the master, that the plaintiff’s intestate was entitled to three hundred and sixty dollars, fifty-five cents, of which he received three hundred dollars before his death, leaving a balance of sixty dollars, fifty-five cents still due. For this balance he is entitled to a decree. It is ordered and decreed, that the defendant pay to the plaintiff this sum, and that the circuit decree be modified accordingly. And for as much as this balance was tendered to the plaintiff before suit, it is ordered and decreed that the plaintiff pay the costs of this suit.

WithbRS, Wardlaw, and Glovee,, JJ., and DuneiN, Ch., concurred.

WaRDLaw, Ch.,

dissenting. This case involves a small sum of money, and no new or great principle; yet it has the interest of presenting a concrete issue of law and fact, upon which the circuit chancellor differed from the master, the Court of Appeals in equity was equally divided, and a conclusion has been attained in this Court of dernier resort by a bare majority.

On February 12, 1848, Dickson & Mills, by the *cognovit*of Mills only, confessed a judgment for a large sum of money to 0. Mills & Co., a mercantile firm composed of Otis Mills & E. M. Beach ; and on this judgment a *fieri facias*was issued the same day. On February 14, 1848, Dickson & Mills assigned all their assets to the defendant Beach in trust for their *503creditors, giving a preference to 0. Mills & Co. and some other creditors; and on February 23, 1848, C. Burckmyer, plaintiff’s intestate, was appointed agent of the creditors under the Act of 1828. The goods constituting the stock in trade of Dickson & Mills, were seized by the sheriff under th *q fieri facias*of 0. Mills & Co.; and on April 11,1848, a motion was made, at the instance of the agent, before Judge Wardlaw, to set aside the judgment of 0. Mills & Co , which resulted in an order by the Judge that the execution be suspended until the second Monday of May following. The motion to vacate this judgment was renewed at May Term of the Common Pleas, and refused by the same Judge. From this refusal the agent appealed, and his appeal was sustained by the Law Court of Appeals, and the judgment declared to be void. On April 12, 1848, the day after the *fieri facias*had been suspended by the consent of all parties in interest, the sheriff sold the goods of Dickson & Mills, and received the proceeds of sale. And on May 16,1848, he paid over the nett proceeds of sale, fifteen thousand three hundred and five dollars, eighty-one cents, to the attorneys of 0. Mills & Co., taking for his indemnity a bond with surety from the plaintiffs in execution. This was the only actual payment of this sum ever made to the assignee, and the possession of the money remained undisturbed; although afterwards, on May 18, 1849, the assignee subscribed in that character, prefixing the last date to the receipt given by the attorneys of 0. Mills & Co. to the sheriff on May 16, 1848. The money thus paid to 0. Mills & Co., proved in event to be smaller than the sum they were rateably entitled to as preferred creditors under the assignment of Dickson & Mills. On April 28, 1848, E. L. Adams, and other creditors of Dickson & Mills, filed their hill in the Court of Equity to set aside the assignment of Dickson & Mills so far as it gave a preference to 0. Mills & Co.; and the answers of the sheriff filed on June 17, 1848, and of Otis Mills and E. M. Beach, filed on June 29, 1848, explicitly state that the sheriff had paid over the nett *504proceeds of sale to said Mills & Beach; and without allusion, to any bond of indemnity or intimation of any condition in the payment. This bill was ultimately dismissed and the assignment sustained. Burckmyer, the agent of creditors, died on July 1, 1848.

In this bill the plaintiff claims that as representative of his intestate he is entitled to one half of the commissions on the sums (including the fifteen thousand three hundred and five dollars, eighty-one cents,) received and disbursed by the as-signee in the lifetime of the agent. This- claim is admitted to the extent of three hundred and sixty dollars, fifty-five cents, of which three hundred dollars were paid to the intestate in his lifetime, and resisted as to commissions on the said sum of fifteen thousand three hundred and five dollars, eighty-one cents. If this latter sum of money was received and disbursed by the assignee during the life of the agent, it is clear on the terms of the Act of 1828, and it is undisputed, that the representative of the agent is entitled to one half of five per cent, for receiving, and of two and a half per cent, for paying. The Circuit Chancellor acting on the maxim, *in fiatione legis, equitas existat,*disallowed plaintiff’s claim to commissions for payment to 0. Mills & Co., because there had been no actual apportionment of the assigned estate among the creditors in the agent’s lifetime, although it was ultimately shown that 0. Mills & Co. were entitled under the assignment to a larger sum than that paid to them by the sheriff. If there were error in the decree in this particular, it is not made the subject of appeal, and it cannot logically support to any extent the conclusion that the Chancellor also erred in allowing commissions for receiving the money.-

The assignee has retained in his hands the full sum of seven and a half per cent, on his receipts and disbursements, and has made no abatement from the demands of 0. Mills & Co., of which he was a partner for interest on the sum aforesaid received and used by them for a year at least before the appor*505tionment of assets. It is clear beyond dispute, that according to the provisions of the Act the assignee is entitled to half only of these commissions; and it is equally clear that if he did not regard the delivery of the money to 0. Mills & Co., as a payment to himself as assignee, he should have charged himself or his firm in his accounts for the use of this money. I grant that these matters present properly issues between the creditors and the assignee, and that the plaintiff must establish his title to a moiety of the commissiqns, notwithstanding the defendant retained the whole wrongfully; yet as the creditors have not complained, and as an equivocal possession or any other act of a party is to be construed lawful rather than tortious, some presumption arises from these circumstances that defendant retained the whole commission's in right of himself and the agent, and that he is trustee for the plaintiff as to one half.

The question of the cause is, whether the defendant received the money above mentioned as assignee in the life of the agent. So far as I understand the views of the majority of the Judges, expressed in conference, some of them suppose that the money was in the custody of the Sheriff, until May 18, 1849, and that the transaction of May 16, 1848, was a private loan or deposit by him, upon indemnity to 0. Mills & Co., who thereby incurred no greater liability than any stranger would have incurred, by like loan or deposit; and others of the majority suppose that the character of judgment creditors, in which 0. Mills & Co. professedly received the money from the Sheriff, cannot be varied by the event showing that one of the firm only was entitled to receive, and in a different character, as assignee. I will consider the elements of these views.

It appears by the testimony of Mr. Brewster, that the plaintiffs in execution gave a bond to the Sheriff for his indemnity, when they received the money; but it is at least doubtful whether this fact should vary the case, when the bond itself is not produced, nor its loss accounted for. At all events, it *506should be treated simply as a bond of indemnity, and not tortured into a bond to secure the forthcoming of money lent or deposited. It cannot be fairly conjectured, that it was intended to limit or qualify the payment, or any thing more than an instrument for the protection of the Sheriff, in a payment which might turn out to be wrongful. Prudent Sheriffs exact such obligations, in all cases of disputed claims to funds; but such obligations are merely superfluous, in no respect controlling the rights of the parties, when the actual payment is sustained as rightful. It appears by the answers of the Sheriff and of 0. Mills and E. M. Beach, to the bill of E. L. Adams, and others, that all of those persons concerned in the paying and receiving, considered the payment to 0. Mills & Co. as effective and complete, and not limited by the bond of indemnity. If the defendant had never ratified the payment to 0. Mills & Co., and the Sheriff had sued this firm on the bond of indemnity, surely they could have defended themselves successfully, by showing that bne of them was entitled at the time to receive the money, although in a different character from that in which it was received.

When Mr. Shingler sold the goods, and received the money in question, the mandate of the 'Court to him officially to sell and receive was suspended in energy ; and he acted as private agent of all the parties, and of course of the assignee and agent who were ultimately adjudged to be entitled to the proceeds of sale. Pie was in effect the agent of whomsoever might have the right, and his receipt of the money was a receipt by his eventual principal, with the consequence 'of commissions.

Granting, however, thp,t the consent of parties to the sale merely waived the order suspending the execution, and that the Sheriff throughout acted officially, the same conclusion may be attained. Supposing the Sheriff to have officially ■ paid the money to the plaintiffs, in the execution then subsisting, (and I have already shown that both parties treated it as payment in fact,) thé payment was lawful and effectual at the time, for one *507of the partners had full right to receive. A structure sustained by various props, does not necessarily fall, because one .of the props is not stable. A party having legal right to the possession of a fund, is not damnified by relying on some untenable title, any more than a party entitled to the judgment of a court in his favor, is obstructed by false argumentation in his behalf. E. M. Beach, when he received the money from the Sheriff, was entitled to receive it as assignee, and his title is not impaired by his mistake that he had a right to receive it as a judgment creditor. Having two rights, he might fall back, when one failed, upon the other.

From the nature of partnership, each of the partners is in constructive possession of the whole assets of the firm. It- is physically impossible that more than one can have actual custody of a single article at the same time, but in legal construction all the partners possess what any of them may receive and keep. E. M. Beach received the money which was paid to 0. Mills & Co., of which he was a partner.

If all the foregoing reasoning be unsound, the ratification by Beach as assignee of the payment in May, 1848, seems conclusive of the case. By adding his signature as assignee to the receipt of his attorneys to the Sheriff, he explicitly recognized the receipt by him as assignee at the date of the original receipt. The prefixing a date to his confirmation, serves only to show the time of his confirmation, and not to restrict the completeness, and necessary retroaction of his confirmation. The money was in fact paid to him in May, ,1848, and not in May, 1849, and he acknowledges and adopts this fact, by subscribing the original receipt. Subsequent assent to what has already been done, has a retrospective effect, and is equivalent to a previous command. *Omnis ratihábitio retrotrahitur et man-dato priori sequparatur.*When a man pays a sum of money or buys goods for me, without my knowledge or request, and afterwards I agree to the payment, or receive the goods, this is equivalent to my previous request to him to pay or buy. So, *508if the goods of an owner are wrongfully taken and sold, be may waive action against tbe wrong-doer, and treat him as an agent, and may adopt the sale and maintain an action for the price against the purchaser. Such adoption of agency relates back to the original transaction, and places it on the same footing as if the authority had been conferred before the transaction. Broom’s Leg. Max. 345, 380-3; Chitty on Cont. 212 and n.; *Lawrence*v. *Taylor,*5 Hill (N. Y.) 113.

I adhere to the Circuit decree.

O’Neall and Whither, JJ., and JohNSTON, Ch., concurred.

*Decree modified.*