#### William P. and T. M. Bryan, Plaintiffs in Error, v. Nathaniel Buckmaster, Defendant in Error.

ERROR TO MADISON.

A clerk has no right to insert in a fee-bill a charge for sheriff's commissions, when the sheriff himself, in Ms return, makes no such charge—he has no power to supply the omission.

When a sheriff sells property and realizes a part of the debt, he is entitled to commissions only on the sum made.

When the sheriff does not sell, if real estate is levied on, the appraisement will furnish an equitable rule by which to calculate the commissions.

In doubtful cases, if by giving a literal construction to a statute it will be the means of producing great injustice, and lead to consequences that could not have been anticipated by the legislature, courts are bound to presume that the legislature intended no such consequences, and give such a construction as will promote the ends of justice.

This was a motion made in the circuit court of Madison county, to quash a fee-bill for erroneous and incorrect charges, made by the defendant as sheriff of Madison county, on two executions—one issued under the act of 1819, and the other under the act of 1825. The objection to the fee-bill was, that the sheriff had charged half commission on the whole amount of the first execution, when nothing was made by it, the property not having been sold for want of bidders. The sheriff had also charged half commission on the whole amount of the second alias execution, on which the sum of $1666.66 was made by a sale of real estate. The court overruled the motion, and the plaintiffs sued out their writ of error.

Semple, for the plaintiffs in error,

contended that the sheriff was only entitled to his fees for levying the first execution, and no commission; and was only entitled to half commission on the amount made on the second execution, and no commission for the remainder of the execution not satisfied. He cited Laws of 1819, p. 328, and Laws of 1825, p. 142.

Prickett, contra,

insisted that the words of the acts of 1819 and 1825 referred to, would authorize the sheriff to charge half commission on the whole amount of both executions.

Semple, in reply.

Lockwood, J.,

delivered the opinion of the court * This *409was a motion made in the circuit court of Madison county, to quash a fee-bill issued by the clerk of said court.

The fees complained of were, that the clerk had inserted charges for commissions on two executions issued in the court below, which were not returned by the sheriff on the executions ; and also, for charging commissions on the whole amount of the executions, when only part of the amount had been levied and collected.

The circuit court refused to quash the fee-bill, and the case was brought into this court by writ of error.

The first question presented in this case is, whether the clerk had a right to insert in the fee-bill a charge for commissions, when the sheriff, in his return on the execution, made no such charge ?

On the first execution, the sheriff, in his fee-bill indorsed on the back thereof, fees amounting to two dollars and thirty-three cents, yet the clerk, without any claim on record, charges the plaintiffs with forty-eight dollars and eighty-nine cents, for commissions; and on the second execution, the sheriff returned fees, including commissions of seventy-six dollars and twenty-four cents, to eighty dollars and twenty-four cents, and the clerk charged commissions amounting to one hundred and thirty-seven dollars and thirty-four cents.

By the statute regulating the fees of the several officers, it is made the duty of the clerk to keep a book, in which he shall set down the costs made by both parties, and when any officer shall require it, he is to make out a transcript from his fee-book, and deliver the same to the sheriff.

But how is the clerk to know what fees the sheriff is entitled to ? There is no law on the subject, but the practice of sheriffs always has been to return on the process their fees, and in most cases it is absolutely impossible for the clerk to ascertain their fees in any other way. Should the sheriff not charge fees enough, or not charge any, it is his own loss, and the clerk has no authority to supply the omission. Doubtless the sheriff might, by application to the court, obtain leave to amend his return, but until this is done, the clerk has no power to charge either party with sheriff’s fees.

The court has also been called on in this case, to settle the true construction of the statute regulating fees, passed in 1825. Laws of 1825, page 142. By that act, “a commission is given of five per centum on the first three hundred dollars, and for all above that sum, a commission of 2 1-2 per centum: provided, that in all cases, when the execution shall be settled by the parties, replevied, stopped by injunc*410tion, or when the money is paid without sale, or the property levied on is not sold, only one-half of said commissions shall be charged.”

Has a sheriff, under this provision, when an execution for five thousand dollars is levied on property worth but one thousand, a right to charge commissions on the whole amount of the execution, or only on the amount levied on ?

Commissions are usually understood to mean a certain per centage on moneys received and paid over, and the legislature undoubtedly intended to pay sheriffs the value only of the services they rendered, with a reasonable compensation for their risk. Where they sell, and realize a part of the debt, they are only entitled to commissions on the sum made.

But if the sale be stopped by injunction, or the property levied on not sold, what shall be the rule ?

If the sale be made, and only a part of the debt realized, he is only entitled to commissions on the sum made, and shall the sheriff be entitled to greater commissions when no sale takes place, and no money passes through his hands, and consequently, no risk incurred ? This is both unreasonable and unjust, and we can not presume that the legislature intended to give more in a case where the least services were rendered. In doubtful cases, if by giving a literal construction to a statute, it will be the means of producing great injustice, and lead to consequences that could not have been contemplated by the legislature, courts are bound to presume that the legislature intended no such consequences, and give such a construction as will promote the ends of justice. (1)

There can be no doubt that the legislature never intended to give a commission on a greater sum than could have been realized from a sale, in cases where no sale takes place; and taking the whole clause together, this construction can be given to it, without doing violence to the language. Where no sale takes place, difficulties, it is true, may sometimes arise, in ascertaining the value of the property levied on. This difficulty, however, does not exist in the executions mentioned in the fee-bill. These executions were *411levied on real estate, and by the statutes of this state, in all cases of levies on real estate, the lands levied on must he appraised. This appraisement will furnish an equitable rule by which to calculate the commissions. Where personal property only is taken, it would be more difficult to furnish the rule, and when such a case arises, it will be time enough to decide it.

The fee-bill is therefore illegal in two respects: first, because it contains charges of commissions not returned on the executions by the sheriff, in whose hands they were placed for collection; and secondly, because commissions are charged on the amount of the executions, when the value of the property levied on appears from the appraisement to be less than the sum due on the execution. For these reasons, the judgment below must be reversed with costs, and the fee-bill quashed.

Judgment reversed.

*

Justice Smith did not sit in tMs cause.

(1)

In construing statutes, we must be governed by the intention of the legislature, though not by some hidden intention, which the language of the law will not justify; but where the language is plain, and admits of no construction, we must take it as we find it. Foley v. The People, ante, p. 57.

Where the consequences of a particular construction of a constitution or law would render its operation mischievous, that construction should be avoided, provided it is susceptible of a different one. The People v. Marshall et al., 1 Gilm., 689.