Vannoy v. . Haymore

71 N.C. 128

• Court: Supreme Court of North Carolina
• Decided: June 5, 1874
• Status: Published

Opinion

Reads, J.

“No officer shall be compelled to perform any service, unless his fees be paid or tendered.” C. C. P., sec. 555.

In- the case before us,, the sheriff"returns “ my fees for laying off homestead and personal property exemptions not paid or tendered to me by plaintiffs or claimants — not executed.”

And the ease states that “ no fees were tendered or paid by the plaintiff or any of them.” This statement covers not only fees for laying off homestead and personal [property exemption, but for executing the process as well. And it is clear that the sheriff ought not to have been amerced.

The point was made that while the homestead must be laid off before the levy, the personal property exemption is to be laid off after the levy. So that if the sheriff was not obliged to lay off the homestead without a tender of his fees, yet he was obliged to levy on the personal property. If any such distinction exists, it does not avail the plaintiffs, because the sheriff was not only not obliged to lay off the homestead and personal property exemption without a tender of his fees for that; but he was not obliged to levy without a tender of his fee for that.

There is error.

Per Cubiam. Judgment reversed and judgment here for defendant.