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Aycock vs. Buffington.

tled to receive 35 per cent. or 14 per cent. according as they may or may not in amount exceed the sum of four hundred and twentyeight dollars and fifty-six cents; if they do exceed that sum he is entitled only to 14 per cent; if they do not, then to 3% per cent. And further, if in such a case there is still a balance remain- [2.] ing to be returned to the defendant, or to be otherwise disposed of, he is entitled to commissions on that balance as if in execution, according to the amount of it, as above stated.

This interpretation is not only equitable but the true meaning of the language of the statute. It is equitable, for it gives to the Sheriff commissions upon the whole amount of the sale, and a compensation for every settlement he makes, whilst it adjusts the amount of the compensation as the statute designed to adjust it, to the amount of each settlement. The legislature could not have intended that the amount of the sales should regulate the commissions, for upon that hypothesis, there was no necessity for mentioning at all the amount of the executions. Upon that construction the act is grossly inequitable, giving for example, where a negro is sold under an execution of thirty dollars, for six hundred dollars, about six times the amount of commissions which he would get were the same property sold for the same amount under an execution of six hundred dollars. It is obvious that the legislature intended to pay the officer relatively to the amount of each execution in his hands for settlement; to small amounts are allotted large commissions, thus sixty-four dollars and twenty-eight cents pays him 64 per cent; an amount over four hundred and twenty-eight dollars and fifty-six cents, 11 per cent. It is demonstrated in this, that it is the amount of the erccutions, which in the statute graduates the commissi It was doubtless the

expectation of the legislature that the amount of the sale in each case would correspond as nearly as practicable with the amount of the executions to be paid, certainly very rarely to exceed that amount, because the Sheriff is prohibited under a very serious penalty, from making excessive levies. No provision it is true, is made for commissions upon balances, but we think they are within the equity of the statute. We, for these reasons, send this cause back with instructions in accordance with this opinion.

Latimer Whiting, & Co. rs. Admrs. Ware.

No. 40.—LATIMER WHITING, & Co. plaintiffs in error rs. The ad

ministrators of Robert WARE, deceased, defendants in error.

(1.) Where an appeal has been entered by the intestate in his lifetime, and the security,

good at the time, becomes insolvent pending the appeal, the administrator of the deceased is not bound to give additional security.

Motion to compel the defendants to give additional security on the appeal entered in this case by their intestate in his lifetime. Heard before Judge WRIGHT. In Floyd Superior Court. October Term, 1846.

Motion overruled in the Court below, assigned for error.

For the facts, see the opinion of the Supreme Court.

WILLIAM Y. HANSELL, for the plaintiffs in error,

Hooper & MITCHELL, and W. AKIN, for the defendants.

By the Court_LUMPKIN, J. delivering the opinion.

The plaintiffs in error recovered a judgment against Robert Ware, who entered an appeal, in terms of the law, giving security which was deemed amply sufficient at the time. Ware died pending the appeal, and a motion was made, at the last October Term of Floyd Superior Court, to compel his administrators to give additional security, on the ground, that the original security had become insolvent, or failing to do so, to have the appeal dismissed. Judge Wright refused the application, and this is now assigned as

error.

[1.] An appeal being a proceeding unknown to the common law, we must look to our own statutes for guidance in this question. It provides that either party, plaintiff or defendant, being dissatisfied with the verdict of the jury, may enter an appeal,“ provided the person or persons so appealing shall, previous to obtaining such appeal, pay all costs which shall have arisen on the former trial, and give security for the eventual condemnation money, except executors and administrators, who shall not be liable to gire such security, fc." Prince, 426.

Latimer Whiting & Co. r8. Admrs. Ware. Is it not manifestly absurd to exempt the representative of an estate from giving any security whatever, when the appeal is entered by him, and to hold him bound to do so, because the security becomes insolvent which was given by the testator or intestate in his life-time? It is true, that the rules of court declare, that “if the security, good at first, becomes insolvent pending the appeal, the party appealing shall give other good security in the discretion of the court, or the appeal shall be dismissed.” Hotchkiss, 943. But this rule must be construed in reference to the existing laws of the State; and the Judges who framed it, will not be presumed to have intended it to apply to administrators and executors. Even if interpreted literally, as it is insisted it shall be, it does not embrace the present case; it exacts additional security from the “party appealing" only; whereas this call is made, not on the original defendant who entered the appeal, but upon

bis représentatives. Did it become necessary to do so, we should unhesitatingly uphold the judiciary act exempting executors and administrators from giving security, and set aside the rule as bench law. We are of the opinion however, that there is no repugnance between them.

Why should these administrators be required to give security ? The creditors of the estate are entitled to nothing beyond the assets. That these will be safely kept and legally and faithfully distributed, they have ample security upon the administration bond. Surely it cannot be expected that the administrators will involve themselves or their friends in personal liability apart from the correct administration of the estate. Trustees are never required to go further than to give security for the proper management and appropriation of the trust fund. There is good reason in requiring the party himself if in life, to strengthen the appeal bond before he should be allowed the privilege of litigating his rights longer; he might waste his property and leave his creditor virtually remediless even with a judgment in his favour. But this the administrators cannot do; they have already given security well and truly to administer the goods, chattels and credits of their intestates, and to deliver and pay over the same to such persons as are entitled to the same according to law. Prince, 228.

Were more than this demanded, all prudent persons would either decline undertaking the office of administrator, already too onerous, or else they would forbear or refuse to prosecute beyond the first trial, the just claims of their intestate, rather than incur

Latimer Whiting & Co. os. Admrs. Ware.

the risk which it would involve. Justice to the rights of widows and orphans, as well as creditors, forbids such a decision.

It is contended, and with a good degree of earnestness, that by adopting the foregoing views, the plaintiff is placed in a worse situation by the death of the defendant than he would have been had he lived; that had the debtor survived, he could have been forced to give additional security, whereas his substitutes are relieved, notwithstanding they may continue the controversy which he left pending at his death.

Perhaps after all, there is some confusion in respect to the legal maxim, actus Dei nemini facit injuriam — that no one shall be injured through the act of God. Now it is true, and it would be unreasonable if it were otherwise, that those things which are inevitable, as storms, tempests and lightning, which no industry can avoid, no policy prevent, something in opposition to the act of man, shall not operate to the prejudice of those to whom no laches can be imputed. Thus if a sea bank, or wall, which the owners of particular lands are bound to repair, be destroyed by tempests, without any default in such owners, the Commissioners of Sewers may order a new wall to be erected, at the expense of the whole level. Rex vs. Somerset, (Commissioners of Sewers,) 8 T. R. 312.

So, also, where land is surrounded suddenly by the rage or violence of the sea, without any default of the tenant, or if the surface of a meadow be destroyed by the eruption of a moss, this would be no waste, but the act of God; that vis major for which the tenant is not responsible. Simmons vs. Norton, 7 Bing. 647,

Again, if the condition of a bond was possible at the time of making it, and becomes impossible by the act of God, the obligor shall be excused. As if a lessee covenants to leave a wood in as good plight as the wood was at the time of making the lease, and afterwards the trees were blown down by a tempest, he is discharged from his covenant. 1 Reports, 98.

So much for the illustration of the rule.

On the other hand, it cannot be disputed that death is one of those dispensations of Providence which occasions frequently, not loss merely, but absolute ruin, to innocent sufferers. Take the case of landlord and tenant, where the premises are destroyed by fire, the latter is liable to the payment of rent until the tenancy is determined, although the landlord is not bound to rebuild, notwithstanding he has recovered the value from an Insurance office. Paradine vs. Jane, Aleyn's R. 27.

Stroup vs. Sullivan and Black.

By the common law, the death of a sole party to a suit pending the proceding, was always productive of delay and expense by the abatement of the action. In personal actions the right itself is forever gone.

Where credit is extended, not upon the property, but the probity of the debtor, his death, which is the act of God, takes from the creditor all hope of re-imbursement; so that were it true, as urged by the plaintiff in error, that under this construction, by the death of Ware he is placed in a worse condition than he was before, still that would interpose no legal objection to the doctrines. And, whatever else may or may not inflict an injury, it is our province to see to it, that the law works no wrong in our bands. That actus curiæ meminem gravabit.

The judgment of the Court below must be affirmed.

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No. 41.-Moses STROUP, plaintiff in error vs. THOMAS A. SULLI

VAN and George S. Black, defendants in error.

(1.) A Court in equity will not grant relief against a judgment at law, on the ground

of its being unconscientious, unless the defendant in the judgment was entirely ignorant of his defence pending the suit, or unless without any default or neglect on his part, he was prevented by fraud, or accident, or the act of the opposite party,

from availing himself of his defence, or by some unavoidable necessity. (2.) Whenever a suit is instituted against a party, it is his duty promptly to make his

defence, if he has any, at the proper time, and in the proper manner; the laws do not favour the negligent and sleepy.

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In Equity. From Cass Superior Court. Motion to dissolve injunction, the answer having come in. Tried before Judge WRIGHT, at Chambers, January 7th, 1847.

In this case his Honour Judge Wright, on the 18th day of December, 1846, upon application of the defendants, and in conformity with the rules in equity as established in this State by the Judges of the Superior Courts in convention, granted a rule nisi, calling upon the plaintiff in error, who was the complainant in the bill, to show cause at the court-house in Cassville, on the 30th day

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