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Neisler, Stansell and Reed rs. Smith.

The order of the Court was as follows:-In the above stated case, the answer being full, and not ercepted to, and the jury haring found for the defendant, upon the bill and answer, the erhibits and proofs; it is therefore, on motion of counsel for defendant, ordered that the injunction be, and the same is, and stands dissolved.

To which decision the counsel for the complainants excepted, and insisted that the finding of a verdict in favour of the defendant on the first trial, when an appeal is entered, is not sufficient cause to dissolve an injunction to stay waste.

WM. MARTIN, for the plaintiffs in error made the following points:

First. The injunction is not of course dissolved upon the master reporting the answer sufficient; but it is at the discretion of the court. Eden on Inj. 74.

Second. When dissolving the injunction would in effect be deciding the cause, the injunction will not be dissolved. Eden on Inj. 86.

Third. A bill may be amended and afterwards an injunction applied for. Eden on Inj. 87, 88. So, if new testimony be discovered.

Fourth. Appeals stay trials in those cases only where the parties cannot be set to rights. Eden on Inj. 229, 230.

Fifth. If the answer admit the waste, the injunction will be continued until the hearing, (final hearing of course.) Eden on Inj. 237.

Sixth. An appeal re-instates the injunction. 3 Bar.&. Har. 195.

Seventh. The Court should exercise discretion as to the dissolution of the injunction. 3 Bar. . Har. 196.

Wm. H. UNDERWOOD, for the defendant in error made the following points:

First. When the answer is full, and the equity of the bill denied, an injunction will be dissolved. Eden on Inj.

Second. When a verdict of a jury is in favour of the defendant, the injunction shall be dissolved on motion, notwithstanding an appeal. The court will not retain an injunction upon the mere possibility that a decree in favour of the defendant may be reversed.

Third. Upon appeal in England an injunction stands dissolved. In this country it will be dissolved on motion, 15 Ves. Jr. 184; 16 Ves. Jr. 216, 217, 386; 3 John. Ch. R. 67; 1 Ibid. 77, 352; 1 Ves. & Beames, 506.

Neisler, Stansell and Reed vs. Smith.

By the Court – WARNER, J. delivering the opinion.

In this case it appears, a motion was made to dissolve the injunction granted to stay waste, on the ground that the jury, on the first trial of the cause, had returned a verdict for the defendant. The counsel for the complainants in the bill, resisted the motion to dissolve, on the ground that they were entitled, under the statute, to another trial on the appeal, before another jury; and that they had not had time to enter an appeal, the verdict of the jury having just been returned. The record discloses the fact, that an apppeal was entered by the complainants in the bill, as provided by the statute. The Court below, however, was of the opinion that the finding of the jury, upon the first trial of the cause for the defendant, operated as a dissolution of the injunction as a matter of course, and granted the motion to dissolve it; to which decision of the Court the complainants excepted, and now assign the same for error in this Court.

By the Art of 1799 it is declared, “in case either party shall be [1.] dissatisfied with the verdict of the jury, then, and in all such cases, either party may, within four days after the adjournment of the court in which such verdict was obtained, enter an appeal in the clerk's office of such court as matter of right; provided the person so appealing shall, previous to obtaining such appeal, pay all costs which may have arisen on the former trial, and give security for the eventual condemnation money, except executors and administrators, who shall not be compelled to give security.” Hotchkiss, 600. By the constitution and laws of this State, equity causes, after the same have been set down for trial, are to be tried by a special jury. The Act of 27th December, 1843, declares, “ in all cases hereafter to be tried in the Superior Courts of this State, on the equity side thereof, either party who may be dissatisfied with the verdict of the jury, may enter an appeal in like manner, and under the same limitations and conditions, as are prescribed in cases at common law, which appeal shall be tried by a special jury, under the provisions governing common law cases.Hotchkiss, 682. If the jury had returned a verdict for the defendant on the final hearing of the cause, the injunction would have deen dissolved, as a matter of course; but in this case the verdict for the defendant was on the first trial, and the complainants were entitled to another trial, before another special jury, as a matter of right, before the allegations in their bill were finally adjudicated. They had the right to

Aycock vs. Buflugton,

introduce additional testimony in support of their case, to contradict or explain the defendant's testimony offered on the first trial, and possibly might have desired to impeach the defendant's witnesses on the second trial of the cause, so as to have secured a verdict in their favour. The defendant is indemnified by security for the eventual condemnation money in the cause. If it was necessary that the injunction should have been granted to stay waste until the first trial of the cause, the same necessity would seem to exist in favour of its continuance until the second trial, to which the party was entitled as a matter of right, under the statute. No reason has been assigned by the Court below, nor does any appear from the record, why the injunction ought not to be continued in the cause until the final hearing. We do not pretend to say a motion might not be properly made to dissolve an injunction, at any stage of the case, upon sufficient cause shown, and that the Court would be authorized to exercise its discretion in relation thereto; but we are of the opinion that the finding of the verdict for the defendant on the first trial of a cause, does not, under our practice, operate as a dissolution of the injunction as a matter of course, as was ruled by the Court below. The judgment of the Court below must therefore be reversed.

No. 39.-Houston Aycock, plaintiff in error us. Alfred BUFFING

TON, guardian of Phebe Ryle, defendant in error.

(1.) The commissions of Sheriffs on money raised by levy and sale, are regulated ac

cording to the amount of the executions. On executions not exceeding in amount sixty-four dollars and twenty-eight cents, they are entitled to 64 per cent. On executions which do not exceed four hundred and twenty-eight dollars and fifty-six

cents, 34 per cent. And on executions which do exceed that sum, 14 per cent. [2.] And on all balances remaining to be paid to the defendant in execution, or other

wise disposed of, the Sheriff' is entitled to the same commissions relatively to amount, as in case of executions.

Rule against Sheriff. From Floyd Superior Court. Tried before Judge WRIGHT. October Term, 1846.

Aycock os. Buffington.

For the circumstances of the case and the points made and decided, see the opinion delivered by the Supreme Court.

WILLIAM H. UNDERWOOD, for the plaintiff in error.

Hooper & MITCHELL, for the defendant in error.

By the Court -- Nisbet, J. delivering the opinion.

It appears by this record, that the Sheriff had in his hands three small executions, each under the sum of sixty-four dollars and twenty-eight cents, and amounting in all to one hundred and thirtyeight dollars. To pay these, he levied upon and sold'a negro woman and an infant child, which brought the sum of six hundred dollars. Upon the whole sum he retained the highest amount of commissions allowed by law, to wit, 64 per cent.; and after satisfying the executions, the remainder of the sum was paid to the defendant in execution. The point being made before Judge Wright, on a rule against him, he was allowed 64 per cent. on the amount of the executions, and no more. It is this decision which we [1.] are now called upon to review, and in so doing we will be required to give a construction to our Statute of 1792, regulating Sheriffs' fees. The question involves no important principle, and is important only in this, that different constructions of this Act having obtained in our Circuit Courts, our judgment will have the effect of making the fees of the Sheriffs the same throughout the State. That part of the Act of 1792, with which we have at present to do, regulates the Sheriff's commissions as follows: "On all sums where the execution does not exceed sixty-four dollars and twenty-eight cents, five per centum on the amount of property sold; on all sums above sixty-four dollars and twenty-eight cents, and where the execution does not exceed four hundred and twenty-eight dollars and fifty- ! six cents, two and one-half per centum ; on all sums where the execution exceeds four hundred and twenty-eight dollars and fiftysix cents, one per centum.” Prince, 259. A subsequent statute added to the commissions thus allowed by the Act of 1792, twentyfive per centum ; which makes the per cent., as regulated by law, six and one fourth, three and one-eighth, and one and one-fourth.

The construction upon which the Sheriff insisted before the Court below, to wit, that he is entitled to six and one-fourth per cent. on the whole amount of the sales, is founded upon the first

Aveock rs. Butlington.

clause of the section of the Act above quoted; that clause declares, that where the erecution does not exceed sixty-four dollars and twenty-eight cents, the Sheriff's fees shall be 5 per cent. (with 25 per cent. added by the subsequent act) on the amount of property sold. It is claimed that the last words entitle him to the highest rate of commissions on the amount of the sales, irrespective of the amount of the executions, provided the execution which brings the money into court does not exceed the sum of sixty-four dollars and twenty-eight cents. This construction may be drawn from this clause, but it is merely literal, and not in accordance with the spirit and fair intent of the whole section. The construction which the Court below gave to it, makes the amount of the execution the sole criterion by which to ascertain its meaning. This construction allows the Sheriff nothing upon the amount of sales remaining after the amount of executions is paid, and so far we think is wrong ; the other construction, to which we have adverted, gives the Sheriff too much. There is a third, and, it seems to us, a better construction than either.

The judgment we rendered in this cause had reference to the case made in the record, and did not lay down any rule of universal application in settling Sheriff's commissions. According to this record there was but one class of executions sharing in the distribution of the fund raised, and they respectively did not exceed in amount sixty-four dollars and twenty-eight cents; after paying these, there remained a considerable balance which was paid to the defendant in execution. Our judgment was, that the Sheriff receive 64 per cent. upon the amount of each of the executions, 33 per cent. or 14 per cent, upon the remainder of the sum for which the property sold, according as that remainder exceeded or did not exceed four hundred and twenty-eight dollars and fiftysix cents. This we think a fair construction of the statute, as applicable to all cases of like character. But the judgment is not, and in the nature of the case, could not be so explicit as to amount to a construction of the law in question, as applicable to other and different state of facts. We say therefore further, that where there are executions in the officer's hands not exceeding in amount sixtyfour dollarsrand, twenty-eight cents, he is entitled to 64 per cent. upon each of these; and if there are also executions in his hands seeking payment out of the same fund, which respectively do or

do not exceed in amount four hundred and twenty-eight dollars and fifty-six cents, then upon each of such executions he is enti

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