Child v. James Dwight & Co., 21 N.C. 171, 1 Dev. & Bat. Eq. 171 (1835)

Dec. 1835 · Supreme Court of North Carolina

21 N.C. 171, 1 Dev. & Bat. Eq. 171

SAMUEL CHILD v. JAMES DWIGHT & Co. et al.

Neither the plaintiff nor defendant can direct the application of money received by the sheriff on an execution. The powers and duties of the sheriff in that respect, are beyond the control of either party, as the law itself applies the money raised on an execution.

The bill was filed the 20th of August, 1830, and stated that the defendants, Thomas Clancy and James Child, were partners and merchants in Hillsborough, trading under the name of Thomas Clancy & Co., and became largely indebted to sundry persons, and amongst them, to the defendants, Dwight, & Co. of Petersburgh, in Virginia, by bond in the sum of eleven hundred and ninty-eight dollars, ninety-seven cents; and to the defendants Bowers & Co. of Petersburg, by bond in the sum of eight hundred and'forty-one dollars fifty-five cents : that those creditors placed their bonds in the hands of the defendant Scott, as their attorney, to be put in suit; which' was done accordingly, and judgments taken at August term, 1828, of Orange County Court; from which appeals were taken to the Superior Court, and thereon final judgments apparently rendered for the whole principal and interest by confession at September term, 1828 : that no executions issued thereon from that term, but that writs of fi. fa. issued from March to September, 1829, which Scott, the attorney, directed the sheriff not to proceed on; and that they were by his consent returned “ nothing found:” that before any judgment, and pending the appeal, and after final judgment, Clancy & Co. made payments to Scott, on account of those debts, to the amount of more than one thousand dollars: that Scott was also indebted upon account to Clancy & Co., and to another firm in which they were interested, to the amount of seven hundred dollars or thereabouts, subject to some credits by account, which might reduce the same to between four and five hundred dollars, and came to an agreement with Clancy & Co. to accept his own said debts in part payment of those of'which he had the collection : that in fact, the said pretended judgments were not rendered by the Court, nor confessed in Court, but the entries thereof were made privately on the record by the parties and clerk in the clerk’s office.

December, 1835.

The bill further stated, that Thomas Clancy & Co. were indebted to the defendants Hill & Nalle, likewise of Petersburg!), in a large sum, namely, five thousand two hundred and forty-three dollars, twenty-eight cents, by bond, in which the plaintiff was bound as their surety ; and also nine-hundred and seventy-nine dollars, seventy cents, upon the note of Thomas Clancy & Co. themselves: that suits were instituted in Orange County Court on each of those debts, which were put to issue at May term, 1.829: that the plaintiff being only a surety, left the defence to his principals, who withdrew the pleas at August term, 1829, when judgments were rendered in both cases; and that in each a cessat executio was entered “ until ordered by the plaintiffs,” without the consent or knowledge of the present plaintiff: that writs of fi. fa. issued thereon from that term to the next on both judgments, which were levied on all the estate real and personal of Thomas Clancy & Co. and thereon writs of venditioni exponas, issued from term to term until the filing of the bill, at which time the sheriff had them.

The bill further stated, that execution was issued on each of the pretended judgments of Dwight <fe Co., and Bowers <fe Co., from September, 1829, which was also levied on the whole of the pi’operty of Clancy «fe Co., and that another was issued from March, 1830, and was then in the sheriff’s hands : that under three various executions of Hill & Nalle, and the other creditors, the sheriff had made sundry sales, and paid out of the proceeds different sums to the attorney Scott, amounting to as much as would be due to his clients, if the said payment to him by Clancy <fe Co., and his debts to them were deducted ; but that the said Scott refused to make any such deductions, and that he, and Dwight & Co., and Bowers & Co. claimed out of the moneys that would be raised by a sale of the residue of the property of Clancy <fc Co. (which was to be made in a few days,) a sufficiency to satisfy those executions', without allowing any of those credits, upon the ground that they were older, and to be preferred to those of Hill & Nalle : that if those credits were not allowed, the plaintiff would be greatly injured, inasmuch as Clancy «fe Co. were insolvent, and the whole of their estate would be much less than sufficient to satisfy all the debts, and the deficiency on the judgment of Hill & Nalle against Clancy <fe Co. and the plaintiff, would be levied from the plaintiff’s estate. The bill further stated that Hill <fe Nalle had directed the sheriff to apply the moneys raised by him to their execution against Clancy <fe Co. for the debt for which there was no surety, so as to- throw the entire loss on the plaintiff, whose estate the sheriff was about to seize on the other execution, notwithstanding Clancy <fe Co. had instructed the sheriff, in writing, to apply the money raised on both the executions of Hill <fe Nalle, in .the first place, to the execution against them and the plaintiff.

The bill then charged, that the plaintiff was discharged from all liability on the judgment, by which he had been bound by the stay of execution,granted without his consent, and by the voluntary delay of the plaintiffs therein to issue it; and that the order of Clancy & Co. to the sheriff, as to the application of the money was obligatory on him, and the plaintiffs in the executions.

The prayer was for a discovery of the manner of taking the judgments of Dwight & Co., and Bowers & Co., and of the payments made to Scott of the sums due from him to Clancy & Co., and of the agreement relative to discounting them in part of those judgments; and in the mean time that those creditors, and Hill & Nalle, should be enjoined from suing the sheriff for, or receiving from him any of the moneys then in the sheriff’s hands, or that might be raised by the approaching sales, unless there should be enough to satisfy all the said debts, or, at any rate, unless the judgment to which the plaintiff is a party, should be first satisfied, or he discharged from it.

The answer of Scott denied that the judgments of Dwight & Co., and Bowers & Co., were entered in the office, and stated that they were taken in term time, and in open Court. It also denied, that he received any payments on, or had agreed to make any deduction of any debt of his own from those judgments. He admitted that certain payments had been made to him on other debts to the same creditors, which were placed in his hands for collection, and on which he had not brought suit, on account of those payments, and the promises of the debtors, to discharge the balances thereon without suit; and that he had agreed that any debt of his own to Clancy & Co. should be received in the liquidation'of these last mentioned demands: that there is still a balance due on those debts, after making every deduction: that upon a statement of the mutual accounts between him and Clancy & Co. there is a balance in his favour of forty-four dollars sixty-five cents, but that they are entitled to a further sum from him for a debt to Crane &. Co., (in which they were partners,) of two hundred and twenty dollars sixty-two cents; yet that the said balance ought not to affect these transactions, because, upon the failure of Clancy & Co., he had paid as their surety a much larger sum ; and was still bound in like manner for heavy debts, which he would be obliged to pay-

The answers of Dwight & Co. and Bowers & Co. merely stated their ignorance of the actual transactions between their attorney and- their debtors; denied any authority to the former to discount any debt of his own or any other person, and also denied the payment to them of any thing on any one of their debts, of which they had confided the collection to him, as set forth in Scott’s answer; and they insisted on their right to raise the whole amount of their judgments, by reason of the priority of their liens.

The appli-of raised on at iaw,10nS furnishes^ for relief in e<iuity, as a vious and avall!lblG remedy may be had by motion in the court of law upon the return of the executions.

The plaintiff obtained injunctions as prayed for by him, by an order of a judge out of Court; which was dissolved as to Hill & Nalle, upon their answer at the first term. The bill was then continued as an original bill; replications taken to the answers, and the cause set for hearing, without^ testimony being taken by either party; and transferred to this Court for hearing.

Winston for the plaintiff.

J. W. Norwood for the defendants.

Ruffin, Chief Justice,

after stating the case as above, proceeded : — There,is no equity upon the face of the bill against Hill & Nalle. If an agreement to stay the executions on the judgment, to which the plaintiff was a party, could have the effect of discharging him after he was fixed with the debt; there is, yet, no such agreement charged, nor any thing from which it could be inferred. There is no particular time given to the debtors, no nego-ciation, no stipulation for delay set forth; but a mere memorandum by the plaintiff’s attorney to the clerk not to issue the execution of his own accord, nor until it should be ordered. Besides, there was, in fact, no delay, for the plaintiffs did sue out execution from the very first term.

Then as to the application of the money as between the two executions of Hill & Nalle; the .question is one merely at law, where the present plaintiff could get all the relief he was entitled to, by a motion upon the return of the executions. Indeed he did, in a few days after the filing of this bill, get in that way the benefit he seeks here; for the case at law between these same parties came to this Court, 3 Dev. Rep. 265, and was decided in favour of the present plaintiff, to the full extent of his rights. That case J r ° is, however, mentioned, not for-the purpose of showing that the plaintiff has availed himself of his remedy, but that he had another available and more obvious remedy.

It seems that an attorney cannot set off his own debt, instead of receiving money upon claims put into his hands for collection, so as to bind his client.

The directions of the principal debtors as to the applica-cation of the money raised from the sales of their property are perfectly ineffectual. The duties and powers of the sheriff in that respect were beyond the control'of the plaintiff in the process, after delivering both, and much more beyond that of the defendants therein. The law applies the money raised on an execution.

The case against the other defendants is equally weak. If an attorney could set-off his own debts, instead of receiving money, and thereby bind his client, although he failed to pay him — for which proposition we know of no authority or reason — the agreement for such a set-off, much more a settlement upon that basis, is' pointedly denied by Mr. Scott’s answer, as is also the receipt of any payment whatever from Clancy & Co. on the judgments enjoined; and there is no proof to the contrary on either point. It is hardly necessary to remark, that the objection to the method of entering these judgments is subject to the same observations. If the objection were valid in law, or were open to the complainant, the existence of the facts on which it rests, is denied and not proved.

The bill must therefore be dismissed; and with costs to each of the defendants, except Thomas Clancy & Co.

Per Curiam. Bill dismissed.