Sidebilder
PDF
ePub

1819.

DEW against PARSONS.

sheriff has no claim which he can enforce by action. By the statute Westminster 1. c. 26., which Lord Coke says was made in affirmance of the common law, it is expressly enacted, "that no sheriff shall take any reward to do his office, but shall be paid of that which they hold of the king, and he that so doth shall yield twice as much, and be punished at the king's pleasure.” Lord Coke, in commenting on this statute (a), says at this day they can take no more for doing their office than has been since this act allowed to them by authority of parliament. Walden v. Vessey (b), Woodgate v. Knatchbull (c), and the judgment of Lord Ellenborough C. J. in Graham v. Grylls (d), are authorities to shew that at common law the sheriff could not take any fees for executing his office. The right, therefore, if it exist at all, must be by statute. The first and only statute upon the subject of warrants, is the 23 Hen. 6. c. 9.; it enacts that the sheriff shall take no more than 4d. for the making of any warrant or precept; the word warrant being coupled with precept must mean this species of warrant: but if this be not a warrant within the meaning of that act, the plaintiff is entitled to no fee whatever. If it be within the act, then he can only claim 4d. for each warrant, and if so, he has been overpaid.

W. E. Taunton. The defendant is not entitled to set off in this action this sum of money which he was not compellable to pay, but which, with a full knowledge of all the facts, though under a mistake as to the law, he actually paid to a person claiming as of right; and

(a) 2 Inst. 210.
(c) 2 T. R. 158.

(b) Latch. 15.
(d) 2 M. & S. 297.
Brisbane

Brisbane v. Dacres (a), is an authority upon this point. Secondly, this is not claimed as a fee, but a compensation for work and labour. It is physically impossible for the sheriff to execute in person all the duties of his office; it becomes a matter of necessity, therefore, to employ others in his aid, and such persons must be remunerated for their labour; and it is most reasonable that the sheriff should be allowed to receive a compensation from suitors for doing that which it is impossible for one person to perform. The statute of 23 Hen. 6. applies to the case of defendants and not of plaintiffs. For that statute enacts, that the sheriff, &c. shall let out of prison all persons by them arrested or being in their custody, under any bill or warrant, &c., and then the same clause goes on to say, that the sheriff shall take no more fee than four-pence for every warrant. It applies, therefore, to fees claimed of defendants arrested and in his custody, and not to fees. claimed of plaintiffs. And he cited (b) Fuller v. Prest, and Creswell v. Hoghton (c), to shew, that this was generally understood to be the meaning of the act. And Martin v. Slade (d), is an authority expressly in point to shew, that at this day, the fees of the sheriffs are not to be regulated by the stat. Hen. 6. Besides, it has been the invariable practice to allow as costs between parties in the suit, reasonable fees, paid to the sheriff upon all warrants. Boldero v. Mosse. (e)

ABBOTT C. J. This question comes before the Court in a different shape from those which existed in the cases cited. For this is in substance like an action by

(a) 5 Taunt. 143.
(d) 2 New Rep. 59.
VOL. II.

(b) 7 T. R. 109.
(e) 3 T. R. 417.

(c) 6 T. R. 355.

the

Pp

1819.

DEW

against

PARSONS.

1819.

DEW against PARSONS.

the sheriff to recover his fees; and in that case, he must by law make out his title to them; and if he does not do so, the defendant will be entitled to set off the sum which has been overpaid. We do not feel ourselves at liberty to say that the usage which is stated to have prevailed is sufficient to have repealed an act of parliament. At the common law, the sheriff was not entitled to make any charge for executing a writ, and therefore, if he has any claim, it must be under the provisions of some statute. That brings us to the consideration of the statute 23 Hen. 6. c. 9.; and the question is, whether the word warrant, there used, in respect of which the sum of 4d. only is to be paid, means such a warrant as that for which the charge which is the subject of the present action is made. And it seems to me that it does, and that the sheriff was only entitled to make the charge of 4d. for each of these warrants. But if this were not so, it will not materially affect our judgment on the present occasion. For if this case be not within the 23 Hen. 6. c. 9., the sheriff would not be entitled to any thing. The charge in this case may be reasonable, but it is contrary to law, and cannot, therefore, be allowed. The consequence is, that this rule must be discharged.

HOLROYD J. (a) I am of the same opinion, that this nonsuit must stand. If the defendant has paid more money than the sheriff is allowed by law to demand as his fee, the sheriff cannot retain that surplus, and must (if required so to do) return it to the

(a) Bayley J. had left the Court.

defend

[ocr errors][ocr errors][ocr errors]

Now

defendant. It follows, therefore, that the defendant
has a right of set-off on the present occasion.
the sheriff is not entitled to any fees, except those
given to him by some act of parliament; and the only
act within which these warrants seem to be included is
the 23 Hen. 6. s. 9. By that act, the sheriff is em-
powered to take only 4d. for each warrant. If so, unless
some other act of parliament can be found to authorize
a larger payment, the sheriff can make no further claim,
for no usage can prevail against a positive enactment of
the legislature. It is said, that larger sums than those
mentioned in the 23 Hen. 6. have been allowed in
different cases. But there is not any case which
shews that those sums have been allowed upon a
claim made by the sheriff or his bailiff; and per-
haps those cases can be explained thus. The plain-
tiff may desire a special bailiff to be named for the
purpose of executing the writ, and for that he may
be liable to pay a reasonable sum to the sheriff, and
that sum may have been allowed to him on his
taxation of costs, as being an expence reasonably
incurred by him in the course of a cause. In that way,
perhaps, the allowance of one guinea, levy money,
mentioned in some of the cases, may be supported.
But this case is very distinguishable, and seems to me
to fall within the very words of the statute.

BEST J. Where the sheriff makes a claim for fees he is to be strictly confined to the limits allowed by the law; but a party who has actually paid the fees claimed in the course of a cause, may be in a very different situation from the sheriff who has claimed them, and may have such allowed to him in taxation of costs, as he may reasonably be expected to pay. No act of Pp 2 parlia

1819.

DEW

against

PARSONS.

1819..

DEW against PARSONS

parliament authorises the fees claimed in this case; and it is quite clear, at common law, that the sheriff is entitled to no compensation. Besides, if independently of any act of parliament, it were competent for him to establish a claim by usage, still no sufficient usage has been proved to exist in this case; for that which is stated to exist is quite absurd, being 3s. 6d. for each warrant, if the attorney resides within the county, and 2s. 6d. if he resides out of it. If, however, it had been a reasonable usage, it could not have been set up against an act of parliament. The case stands thus: if it be within the stat. 23 Hen. 6. the sheriff is entitled to 4d.; if it be not, he is entitled to nothing. Then, as to the question of set-off, I am clearly of opinion that the defendant is entitled to set off what he has overpaid to the sheriff; for this is not like Brisbane v. Dacres, the case of a voluntary payment. In that case, both parties were equally cognizant of the situation in which they stood; but here that was not the case. Upon the whole, I think the nonsuit was right, and that this rule must be discharged.

Rule discharged.

Friday,
May 14th.

A warrant of attorney to confess judgment is not void for omitting to

SANSOM and Others against GOODE.

PULLER had obtained a rule nisi in this cause, for setting aside a warrant of attorney, and the judgment and execution thercon, on the ground that the defeazance only stated the sum secured by the lateral security judgment, without noticing collateral securities. It

state in the defeazance a col

for the same

debt.

ap

« ForrigeFortsett »