The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-03-08

IL THE ATTORNEY GENERAL SAYS n
a Correspondence betwecn the audit
amt Attorney General ON the
as SubJtct.
VI AUDITORS OFPICE,
re JACKSON Miss Feb q, 1879
It, SIR: l respectfully ask your opinic
@, upon the question whether Sherifs are el
10 titled to commissions for collections on fin
l. and forfetures
l. Very respectfully, S. GwIN,
;. Auditor of Pub Acts.
!, Cen T. C. Catchings, Attorney General.
Attorney Generals Reply.
9, ATTORNEY GENERALS OFFICE
JACKSON, Miss, Feb. 20, 1879.
: Hon. 5. Gwin, Auditor
t SIR I have carefully considered the ques
ton submitted by you on the 9th inst,
s as to the right of Sheriffs to commission
I OH fines and forfeitures received by them
The fees of Sheriffs are carefully specified
in the general fee bill, approved March
1875. See Acts of that year, page IA, IA
and 146.
They are entitled to no fees not enume
rated in that Act, for by its first section, il
is declared that they shall not be entitled tc
any other, and by its last section, it is made
extortion for them to receive any other.
This construction was placed upon that
Act by the Supreme Court, i'll the case OF
Geo. b. Myers, VS.. Marshall county, s.
Miss, 344.
By that Act, it is declared that Sheriffs
shall be entitled to commissions "on all
money made by virtue of any decree, ex-
ecution, attachment or other process"
The commissions are: on the first. hundred
dollars, per cent; on the second hundred
dollars, per cent; and on all sums over
two hundred dollars, l per cont.
If judgment is entered for fine or for
feiture, and the defendant pays the amount
of the judgment before an execution is
placed in the hands of the Sheriff, he is not
entitled to commissions.
If Judgment is entered against defend
ant for fine, and commanding the Sheriff
to hold him till the fine is paid, and the deN
fendant pays the Judgment before The issu-
ance of an execution against%% his property,
the Sheriff is not entitled to his commits
sions.
If, however, an execution issues COM
manding the Sheriff to make the Judgment
ont of the property of the defendant, and
the money is made by the Sheriff under
the execution, either by the sale of the de-
fendant's property, or by its being paid to
him, to prevent levy or sale, he is entitled
to his commissions ut the rate above mems
toned.
Tho case of Wynne VS.. NJ. & T. r. r.
Co., As Miss, $40, is conclusive upon the |
point, that 10 entitle a Sheriff to commits
sions, he must have mdCIe the money under
a decree, execution, attachment or other
process.
The process under which he claims com
mission must be process empowering him
20 seize and sell the defendants property,
% make the money In that case Wynne
lad recovered a judgment against the III. i
I. Il. H. Co. for $15, 600. An execn- ,
ion was issued and placed in the hands ,
f the Sheriff, who levied it upon prop
rty sufficient to satisfy the debt, and j
dvertised it for sale Before the day of ,
ale, the defendant settled the debt directly !
nth the plaintiff. The Sheriff claimed I
but the Supreme Court held |
nat no WAS not entitled to them. They ;
aid speaking of the law regulating fees, 5
bovo cited "This, to our mind, clearly =
cnse where money has been
lade by the Sheriff, under any decree, exe- :
ltion, attachment or other process. :
Iherever property has been sold by the .
heriff under a decree, execution or other >,
recess, he is undoubtedly entitled TO the 9
,mmissions prescribed by the statutes, on >,
% money made by tho sale. And in a case L.
here the plaintiff in the Judgment became .,
o purchaser of the property sold, under :,
e execution, the Sheriff would be entitled =,
his commissions, on the amount of the -,
aintiff's bid, as this would be equivalent, n
legal contemplation, to so much money ?,
sde and paid over to the plaintiff. .,
or poundage as they are call o
, are given rs a compensation for services u,
illy performed, and whsu these are not 60
rformed, compensation cannot justly be =.
lined. The money cannot be said to be A,
lde by the officer by virtue of an execu 81,
n, when paid directly by the debtor to Il
plaintiff before n sale under an execu- sn
H. But where the officer receives the wi
,ncy under the authority of the execution -,
his hands, he is entitled TO his commits q,
ms thereon, although he may not even :,
We made levy ON property of the de- M
Idant.r tb
To entitle the Sheriff TO commissions, =,
refore, an execution, or other process,
ler which he could levy upon and sell co,
defendants property, must have issued, ~,
he must have received the money by Al.
ue of his having this process in his .hs
Ids. tbe
the money is paid before process issues.
is not entitled to commissions, because
las not made the samo by virtue of any
cess II defendant is committed TO '''-'
custody, to be held until a fine is paid, -
the fine Is paid, without the reception 'i'''
lim. OF process, under which he could w.
g levied on the dcfondants property.
:. for the same reason, not entitled 10
missions. Respectfully.
r G CArCHINGS, Atty General Ion