Judges: CREW, C. J.
Attorneys: Littleton, e contra . The words of the statute refer to bonds made by the party arrested, or to be arrested; but here the promise is made by the defendant and not by him who was to be arrested. In Audley's case , 7 Jac., it was resolved that a bond made by him who prosecutes the arrest is not within the statute. But there it was resolved that if the sheriff himself
took such a bond, it is void at common law. For he is an appointed
minister, and the people are obliged to go to him; therefore, no sort of extortion shall be permitted him. 21 H., 7, 19. Bare fees may be enlarged by custom or by the direction of the courts. H. 13 Jac. Sherley and Packer's case . If a sheriff takes more than he is allowed, it is extortion, and a promise to pay it is void. But this case differs for two reasons.
Filed: Jul. 05, 1793
Latest Update: Mar. 03, 2020
Summary: It was moved in arrest of judgment that the action does not lie: (1) Because the consideration is against the statute *23 H., 6, 20, p. 147, and if it were out of the statute, yet it would be void at common law. For it is an extortion to take a larger fee than the law allows the sheriff or his officers. 1. Because the sheriff ought to execute virtute officii; and one of the articles in eyre in Fleta was to inquire de vicecomitibus qui munera capiunt . Also it was ordained that no officer of the
Summary: It was moved in arrest of judgment that the action does not lie: (1) Because the consideration is against the statute *23 H., 6, 20, p. 147, and if it were out of the statute, yet it would be void at common law. For it is an extortion to take a larger fee than the law allows the sheriff or his officers. 1. Because the sheriff ought to execute virtute officii; and one of the articles in eyre in Fleta was to inquire de vicecomitibus qui munera capiunt . Also it was ordained that no officer of the K..
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I grant it. But I doubt the last case of assistance given to the sheriff.
It was also doubted whether it is contrary to common law, because it is for the furtherance of justice, and at this day, if common fees only were given, executions would be made ad Graecas Calendas.
Quaerens nil cap. per billam. Jones, 65; Bendl., 138, 147; Noy, 76; 1 Rol., 16; Roll. rep., 313.