
    Wallen and others vs. M’Henry’s lessee.
    
    
      A sale of land, by virtue of an execution issued upon an interlocutory judgment for costs, is void, if the items of costs are not set out at full length, as required by the acts of 1779, ch. 4, sec. 4; 1784, ch. 7, sec. 8, 1794, ch. 1, sec. 75; and 1796, ch. 7, sec. 9. 
    
    The judgment in such case is also void; the courts have no power to render an interlocutoryjudgmentfor costs. Per Whyte Judge.
    
      
       Vide Hopkins vs, Waterhouse, ante, 230. Hopkins vs. Godbehire, ante, 241.
    
   Peck, Judge.

This was an action of ejectment. The cause was brought from Claiborne county, where a verdict and judgment were rendered for the plaintiff below.

It became necessary for the lessor of the plaintifis, in the circuit court, to produce and read as evidence in support of a sheriff’s deed, a judgment in these words: “on motion of the defendant by attorney, a rule is granted him to shew cause why a new trial should be granted him in this cause, and the said rule coming on to be heard and the affidavit of John Wallen being filed and argument heard, as well in the support of said rule as against it, and the matters and things therein contained, being considered and fully understood, it is considered and adjudged by the court, that said rule be sustained, and that a new trial be granted, on defendant, John Wallen, paying all cost that has heretofore accrued in this suit, including the costs of this term, except such part of the costs as was adjudged heretofore against the plaintiffs, and that the plaintifis recover against the defendant the cost aforesaid in their behalf expended, for which execution may issue.” ^

An execution issued, purporting to be founded on the above judgment, commanding the sheriff of Claiborne county, that of the goods and chattels, lands and teñe-ments of John Wallen, he should make the sum of $>232 25, which sum Wm. M’Henry recovered, &c. Under this execution (or an alias on the same judgment) the sheriff levied and sold the land in dispute to M’Henry, the plaintiff in the judgment and execution.

On the trial, exception was taken to the sufficiency of this execution. It was alleged that the aggregate sum was made up of items of cost, that many of those items were not made out upon the execution, as required by the acts of 1779, ch. 4, sec. 4; 1784, ch. 7, sec. 8; 1794, ch. 1, sec. 75; 1796, ch. 7, sec. 9. These acts all read in these words: “that it shall and may be lawful for the clerk of the superior and county courts, when suits are determined, and the fees not paid by the party from whom they are due, to make out an execution,» directed to the sheriff of the county where the party resides; and the said sheriff shall levy the same by virtue of said execution as in other cases; and to the said execution shall be annexed a copy of the bill of costs of the fees on which such execution shall issue, wrote in words at length, without any abbreviation whatever, and all executions issuing without the copy of such bill of costs annexed, shall be deemed illegal, and no sheriff shall serve or execute the same.”

Section 10 of the last act says, “that if the clerk of any court, sheriff, register, coroner, or othe.r officer of any county court, shall hereafter be guilty of any breach of the duties enjoined by this act, either by his own confession orverdict of a jury, it shall, on a second conviction bead-judged and deemed a misbehaviour in office, for which such clerk or other officer shall be removed from office.”

The execution in question as to many of the items, falls within the description of those wanting the requisite in-dorsment of the bill of fees.

But it is said, the sheriff has levied this execution and has made sale of the estate under it, and it is urged, that if advantage could be taken of the defects in this process, that there was a time before the sale to have had bene- fit of such advantage. That having been waived at the proper time, the party is concluded.

sa]e Upon a voj¿ jUdgment would not avail a purchaser. Will a sale be available under an execution which in the dress it appears should in the first place never have issued, and in the next place is by law forbidden to be executed ? The several acts of assembly referred to, forbid the sherifffrom serving or executing such process.

In coming to a correct conclusion upon these laws, touching executions, the court has had difficulties. The doctrine of “void,” and “voidable,” has had its share of consideration. Aware that a decision establishing the doctrine generally, that all such executions are void, would produce defects in very many titles acquired under execution sales, we would, had it been consistent with duty, have forborne to fix any general rule.

The case before us, is one where the party procuring the judgment and execution,.is himself the purchaser under them, and the execution by the acts of assembly being for fees is declared to be illegal. Whatever is against law, cannot be otherwise than' void; and whatever is illegal, is against law.

When this question was before us, in the case of Hop. kins and others’ lessee vs. Waterhouse, the court expressed in strong terms a disposition not to favor such executions. The execution in that case, as in the present, was for costs only.

Such executions are within the express letter of the acts referred to, “where suits are determined and the fees not paid to the party to whom they are due, the clerks shall,” &c. It follows therefore, under these acts, that we have before us a strong case for resisting this execution as evidence. The judgment was for costs only; the law supposes M’Henry the actor in suing out the execution; he was-presumed to know the law, and as he was the purchaser, the fact also of the defects of the writ under which he claims.

We do not say that an execution may not be good in part and bad in part; an execution may issue for an hon* est debt recovered by judgment, such an execution may be defective as to an indorsment of the items of cost, or some of them; perhaps in'such a case by analogy, We should follow the case in 1 Tenn. Rep. (Glasgow’s lessee vs. Smith and Blackwell;) but the present is not such a case, and we cannot escape from the question, is the execution void? We think it is.

We do not see in the record offered in support of the execution, the affidavit mentioned in the judgment and relied on by Wallen for a new trial, therefore we cannot know on what ground the court gave judgment for the whole cost, on making the rule absolute. Any thing which I could say on this exercise of a discretionary power (if.in* deed there existed such a power- in that case) can but be speculative. That a judgment, if not absolutely void, and standing in full force cannot be assailed indirectly, is admitted; still the judgment is subject to observation. Previous to the trial, the record shews there had been continuances at the instance of both parties; M’Henry, the plaintiff, had in one instance been made liable for cost on a continuance, finally however, after Wallen had taken his trial and a verdict had passed against him, he must have shewn to the court merits, which had not. been reached, and which when presented on another trial, a different result might be, and by the court was anticipated. Supposing Wallen to have been in default in not coming prepared at that time; why, I would ask, should he be punished beyond the term?

If I may so speak, sufficient for the day might have been the evil thereof. No presumption can arise, that Wallen had been in default in times gone by; then why give this expost facto operation to a judgment for costs? The consequence which followed, shews the pernicious influence of such a course: a plaintiff in ejectment, har-rassing his adversary on a doubtful title, saves all his costs without a trial on the merits, and then discontinues, he has then gained every thing hut possession, and the discontinuance does not prevent another action for that.

There might be much more propriety in ordering the plaintiff in ejectment for his default to pay all costs, for that would be placing him as if he had commenced a new could elect to pay the costand go on, or refusing to accept the terms offered, let judgment go against him. And if he believed the court was dealing to him too hard a measure of justice, he could seek redress by writ of error, and if even that proved ineffectual, he could commence again a new action.

But mark the difference in the case of a defendant; if he does not accept the terms of paying the whole cost, judgment goes against him, and he is turned out of his estate. If he has the better right, he must become plaintiff to restore himself. He cannot have his writ of error on the judgment for costs alone; to get a trial of his merits, he is harrassed with the execution, and the ejectment at the same time. If a sale of the estate in dispute can be effected by virtue of the execution, the character of the title is changed, and a discontinuance of the pending action on which the recovery might be doubtful, would follow, to make way for an action on the newly acquired title, where the judgment, execution and sheriff’s deed, (if regular) is all the evidence.

This is enough to shew that all such judgments, executions, and titles so acquired, ought and will be examined with great strictness. In the early jurisprudence of the country, whence we borrowed our laws, costs were given at the discretion of the judge; what but the abuse of that discretion made it necessary to fix rules of costs by statute?

In our state all costs are given and regulated by statute; discretion here can hardly be thought of; for in all cases it is believed, touching costs, statutory provision is ample and cannot be departed from. This case falls within the statutes of our own state, on the subject of costs, and must be governed by them.

White, Judge.

Concurring with the opinion deliver-

ed by my brother Peck, as to the execution in, this case, I shall confine what I shall say to a few observations on the judgment. The law of costs in this state differs very materially from the law of costs in England laid down in the books. By the common law no costs were recoverable by either the plaintiff or defendant. (2 Inst. 288. Hard. 152. The doctrine of costs there, however, is now become very complicated, and forms one of the most extensive heads of the law in that country. I shall notice in a short manner its general divisions in England, as having some little relation to, and perhaps being to a certain extent explanatory of the present question. Costs in England rest upon a great variety of statutes, and are divided into two classes, such as are final, and such as are interlocutory. The first class, which are in favor of the plaintiff, principally depend upon the statute of Gloucester, 6 Ed. 1, which says, that the demandant may recover against the tenant the cost of his writ purchased, which by a liberal cónstruction has been made to extend to the whole costs of suit, together with the damages in all cases where damages are recovered as in assumpsit, debt, covenant, case, trover, trespass, &c. &c. The first instance of costs given to a defendant was in a writ of right of ward, by the statute of Marlbridge, and afterwards in some very particular cases. The reason why the legislature in England did not place the defendant as early upon the same footing, as to costs, with the plaintiff, was this; that the plaintiff, if he failed in his suit, was amerced pro falso clamare, which was thought a sufficient punishment without subjecting him to the payment of costs, and it was not until the time of Hen. 8 and Jac. 1, that a'general law treating both alike passed. These statutes say,that if the plaintiff be nonsuited, or a verdict pass against him by lawful trial, the defendant shall have judgment to recover his costs, to be assessed and taxed by the discretion of the judge or judges of the court; and shall have such process and execution for the recovery of the .same as the plaintiff might have had if judgment had been given against him. I have cited these English statutes, giving that class of costs called final upon the end of a suit, for the purpose of noticing their structure as being the same. with our act of Assembly giving the like costs, and both directing their recovery or collection by execution.

The 2d, or interlocutory class of costs, are those that are awarded on interlocutory matters arising in the course of the suit, and are very numerous, depending on a great variety of statutes; their recovery or collection resting on the statutes which created them, or upon a rule of court which if not obeyed upon notice, is enforced by attachment.

It will be perceived that our law of costs is very dissimilar to that of England as laid down in their books. That in the first place their assessment or taxation is not discretionary and dependent upon the judge or an officer appointed by him, but prescribed, regulated and fixed by act of Assembly. 2dly. That the interlocutory class of costs, or such as are awarded on interlocutory matters arising in the course of a suit, and by far the most numerous and complex, has no existence here, except in one specified case, and its recovery or collection falls under the general rule, as will be presently noticed.

The similarity that does prevail holds in respect to the first class, in being taxed upon the end or determination of the suit, and in being recoverable or collected by execution. Our act of 1794, ch. 1, sec. 74,says, “Be it enacted,that in all actions whatsoever, the party in whose favor judgment shall be given, or in case of a nonsuit, dismission or discontinuance, the/lefendant shall be entitled to full costs, unless where it is or may be otherwise directed by law.” This is our law of costs; it is general, embraces all cases whatsoever, points to their end or termination in court, and gives full costs to the party prevailing in the suit. Their recovery or collection is the object of the next following section; it says, “Be it enacted, that it shall and may be lawful for the clerks of the superior and county courts on the fees not being paid by the party from whom they are due, to make out execution directed to the sheriff of the county where the party resides, and the said sheriff shall levy the same by virtue of the said execution as in other cases, and a copy of the bill of costs shall be annexed,” &c. The 74th section above quoted,where it says “shall be entitled to full costs, unless where it is or may be otherwise directed,” has reference to the specified case above alluded to, as the only instance in our law of costs of the interlocutory class, or that kind which arises in the course or progress of a suit, and is found in the first member of the last clause of the 26th section of the same act, as follows: “When a plea in abatement shall be pleaded and upon argument the same shall be adjudged insufficient, the plaintiff shall recover against the defendant full costs to the time of overruling such plea, including costs of court. This is the specific exception to the title to full costs which is declared by law and adverted to in the 74th section. What is the case made by the 74th section, and the last clause of the 26th section? It is this; that when the defendant is the prevailing party in the suit, he shall recover full costs, with the exception of what the plaintiff is declared by the 26th section to recover, or in other words, full costs including the costs of the term in which a plea in abatement pleaded by him (the defendant) is adjudged insufficient, and shall be overruled. It is here to be remarked, that although it says the plaintifi shall recover for the bad plea, &c. it does not say that execution shall forthwith or instanter issue, nor does it imply it, and the above part noticed in the 74th section, shews plainly, that an immediate or separateA execution then was not intended by the 26th section-, but by the 74th section it is provided for, and no other case meets it. Besides it is well enough included in the 75th section, where it says, the clerk on the fees not being paid by the party from whom they are due, shall make out execution, &c. &c. and this 75th section is speaking of execution upon determination of suits.

I apprehend it is hardly necessary to state, that the expressions declared by law in the 74th section, means declared by act’of Assembly, and is restrictive of a more general or enlarged sense.

I have said that the class of interlocutory costs does not exist in our law with one exception only, that is the case of an overruled plea in abatement. For I cannot think it can be fairly said that the 5th section of the 4th chapter of the North Carolina act of 1779, forms another; which says, that when it shall he the opinion of the court, the party praying a continuance shall not obtain it without payment of all costs attending the same, the whole of these costs shall be paid before the continuance is granted. My reasons are, first, that the act of North Carolina of 1785, ch. 2, sec. 3, legislating six years afterwards on the very same matter, the granting a continuance, places it on other grounds, to wit, the consent of both parties or cause shewn by affidavit filed, which shall be held sufficient, and omitting altogether the condition of 1779. 2dly. Because this State in 1794 (then a territory) making a court law, proposedly amending the North Carolina act in establishing courts of law and for regulating proceedings therein, when again legislating on the same matter, have adopted the provisions of the act of 1785, and omitted that of 1779, as 1785 had done before it. I say it is certainly not a clear proposition that 1779 is in force.

These being the provisions of our law of costs, short, plain, simple, express, wholly prescribed by act of Assembly, it may be asked where is the sanction to be found for an independent judgment and execution for costs, as if the suit was terminated, upon an interlocutory matter casually arising during its pendency? The answer is, no where. Such a judgment is an assumption of power,, not delegated by the Legislature, and, therefore, in itself a nullity. The act of 1801 ch. 6, sec. 59, speaking of new trials to be had in causes at law or on issues of fact in equity, pretends to the giving no such power. The English practice I admitin some very particular cases to be found in the books, and these more ancient than modern, has imposed it as a condition for the grant, the payment of costs by the party applying. But these costs spoken of there, are a very different matter from the costs in this case. The costs mentioned in the books are the costs of trial only, not the costs of suit, a mere trifle compared with the other. There is another difference in the case between the grant of a new trial in England and here, upon payment of costs. In England the costs of trial and all other costs are paid down by the parties, and he, who receives, is only receiving what he actually expended. But for the party applying for a new trial here to pay down, would be for the other side to reap where he had not sowed; no costs here being paid down, but all awaiting the end of the suit. However, be these matters as they may, it is evident upon our law, no independent judgment and execution can issue before the end of the suit. This is the principle upon which our law of execution rests. Were it otherwise, what an engine of oppression might not the process of law by exe-cutionbe converted into. Take the present case as an example. The grounds upon which new trials are granted are various in their detail, but are resolvable into, or founded upon the misfortunes of the party applying, not upon his default. To remedy this misfortune and to do justice, is the end proposed by the law for the awarding another or a new trial. It would be a remedy for the sake of justice, with a vengeance, if such a proceeding as appears on this record, to wit, a new trial granted, the party to pay all costs incurred in the suit with the exception stated, a mere trifle; judgment rendered for the amountand execution to issue; execution issued accordingly, and that after the cause was out of court by a change of venue and pending in another court; the party’s freehold, the subject matter in contest by the suit, levied on and sold for these costs, and the opposite party the purchaser, who by this very act of purchase under the execution, falsifies his right of action against the defendant, and implies directly his want of title to the land he claimed by his suit, and which he considered by his purchase necessary to obtain, for the purpose of succeeding in his claim against his adversary, and to which he actually had ■ recourse by using the sheriff’s deed in evidence as his title. A new way indeed of gaining a suit, never before heard of, not to be found in the numerous volumes of reports in this and the other States of this union. Not only the analogies of law reject, but even the common sense of mankind must revolt at such a course. Where would be the equal j us ¿jce †0 the suitors, to the wealthy and the needy? How could the embarrassed or the poor man contend for his little farm, even with an undoubted right, against the rich and the designing under the operation of such a proceeding? His poverty or his difficulties would be his ruin, not his want of right, and he would be turned out of doors, deprived of his worldly all, with this accumulated aggravation to his distresses, that the injustice was done to him under the sanction of a court of justice. Can such a proceeding be upheld? The bare statement of it repudiates such a claim.

Let the judgment of the circuit court be reversed and the cause remanded to the circuit court from whence it came, for a new trial to be had therein, &c.

Catron, Judge.

In this cause I have no settled opinion, not being convinced of the correctness of those of my brother judges, upon the grounds assumed; either that the execution was void-, that the judgment was void; or that no execution could issue until after the final termination of the cause in ejectment; but I am unwilling to dissent from my brother judges, because this cause was not advised upon by me, and I have not had time this term to form an opinion in it. My impressions at the former term were contrary to the opinions expressed by judges Whyte and Peck, but doubts have been raised in my mind by the opinions delivered, and I have no prepared and settled judgment either way.

Judgment reversed.  