Lofland v. Jefferson

4 Del. 303

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

By the Court.

—1. The first ground of defence is, that in respect to the last three writs the fees claimed cannot be recovered, because they were not issued to the sheriff in office, or his immediate predecessor in office, but to sheriff Jefferson, a previous sheriff.

We consider this mode of directing execution process irregular and illegal. Execution could be issued only to the sheriff in office, until by the act of 1788, authority was given to his “ immediate” predecessor in office to finish execution process begun by him; but this does not extend beyond the immediate predecessor, and these writs were irregularly issued to sheriff Jefferson. But they were so issued by the order of Doct. Lofland, the defendant here, and he ought not now to object to this irregularity, but should pay as he in fact received from L. Layton the fees endorsed on them, except the claim for dollarage.

2. The construction of the fee bill in reference the sheriff’s right to dollarage is not without difficulty, o's the provisions of the act seem at first view, and are perhaps in reality, inconsistent. Our duty is to give effect to the whole if we can, and if we cannot, to maintain the general purpose of the law, even if it necessarily conflicts with the apparent meaning of certain clauses of the act.

The first general principle is, that the sheriff’s right to dollarage, as well as any other fee, is to be maintained under our act of assembly, and not by reference to any common law rules; and though it may well be, that in England many of the sheriff’s perquisites arise from his extraordinary liabilities as a public officer, yet in this State his liabilities are not always the same, and his compensation is always derived under the act which fixes the fees of public officers.

That act is also to be taken strictly. It expressly declares (263,) that “no fee shall be allowed for any service until it shall be performed ; every provision allowing a fee shall be construed strictly, and the fee under it shall not be allowed for any service which shall not come within the explicit meaning of the terms.” Each service has its fixed fee: for levying an execution on goods, with inventory and appraisement; for advertising goods, so much for the first time, and so much for a second or third advertisement; and for selling goods on execution, what is called dollarage, at the rate of three cents per dollar on the money made by the sale, and legally applied to execution or to landlord’s rent; but the sheriff shall not have dollarage on money applied to an execution in the hands of another officer, or to rent distrained by another officer: if an execution be levied on goods or chattels and settled without a sale, after the expiration of thirty days from the levy and notice, the sheriff shall bé entitled to dollarage: the item of dollarage shall not accrue until sale or settlement as aforesaid. (Dig. 241.)

In the present case a levy was made on an execution at the suit of J. P. Lofland, the defendant, against Lowder Layton, previous to the October term, 1833, and the money was paid by the defendant in the execution to Doct. Lofland himself, in the year 1840 or 1841, there being at the time no writ in the hands of sheriff Jefferson, or any of his successors, authorizing a collection of this debt from Mr. Lay-ton. The last writ which issued was returnable to October term, 1838; to which term it ought to have been returned, with a certificate of what had been done by virtue of it up to that time, which would have embraced neither a sale of the goods, nor levy of the money, nor any other service entitling the sheriff to endorse a charge for doliarage.

The writ was then functus officio. Sheriff Jefferson had no right to sell upon it; nor any right to receive and give a discharge for the money. If the money had been paid to him by this defendant, it would not have satisfied the judgment in case the sheriff had not paid it over to the plaintiff.

Being thus properly returnable, and to be treated as if returned at the October term, 1838; with no act done by the sheriff entitling him to doliarage; and no further process directed to him under which he could earn the doliarage, the subsequent payment of the money by the defendant, L. Layton, to Doct. Lofland, did not entitle sheriff Jefferson to doliarage. It was not money levied by any execution process. This is proved by the fact, that if a subsequent writ had been issued to sheriff Steel, or sheriff Smith, and the money levied by a sale, he, and not sheriff Jefferson, would have been entitled to the doliarage. And even if an execution had been issued against Mr. Layton, by any other creditor, and delivered to sheriff Smith, by xdrtue^ of which he sold goods applicable to this execution, he, (if any one,) and not sheriff Jefferson, xvould be entitled to doliarage on the sum so applied to it.

This proves that sheriff Jefferson did not by the levy alone acquire a right to doliarage on this debt. Yet, it is said, that by the act of assembly, if an execution be settled without a sale after thirty days, the doliarage shall accrue. This must be taken in connection with the whole act, and must have reference to a writ in the sheriff’s hands under which he might make a sale or levy the money. It is not so restricted in terms, but it is so by reference to the whole act It is a provision for the benefit of the defendant; to take away any interest which the sheriff might have to make sale, and to save him his doliarage on a settlement without sale just as if he had sold. But this can only be whilst he has the right to sell. The right to doliarage cannot, by the levy, be vested whenever the debt may be settled; because even where a further writ issues in the same case to another sheriff, and the money is raised by a sale; the sheriff selling gets the dollarage, and not the sherifflevying; much less shall the sheriff levying be entitled to dollarage at any time after, when the defendant voluntarily pays the debt to the plaintiff, if he could not get it even where the money is finally levied by pursuing the same process out.

Layton, for appellant. Cullen, for respondent.

The clause of the act of assembly which speaks of a certificate for dollarage received by the sheriff when there is no execution in his hands, if compatible with this opinion at all, has reference to the case where an execution has been levied and returned, and the property is sold by the same or another sheriff', and the proceeds applied to the returned execution: the officer applying it in that case gets the dollarage, and is bound to certify it to executions not in his hands.