Judges: JONES, J.
Attorneys: Jermyn for the defendant. The sheriff ought to have only £ 4 6d. for the whole execution; inasmuch as at common law he had no fee of common right, and he cannot maintain an action of contract for his fee, and he cited Batho v. Salter; ;as the statute is introductio novi juris , it ought to be taken strictly — and it may be expounded here both ways.
Filed: Jul. 05, 1793
Latest Update: Mar. 02, 2020
Summary: The statute admits of two constructions, therefore it is proper to inquire into its true meaning. The mischief was, that sheriffs used to be slack in doing executions, for there was much danger and no profit; as if the party escaped an action on the case laid against the sheriffs, besides the trouble of conveying and keeping him in prison. *Page 666 Therefore, this statute was intended to constitute a medium between the oppression of the suitors and the avarice of the officers. And as the danger
Summary: The statute admits of two constructions, therefore it is proper to inquire into its true meaning. The mischief was, that sheriffs used to be slack in doing executions, for there was much danger and no profit; as if the party escaped an action on the case laid against the sheriffs, besides the trouble of conveying and keeping him in prison. *Page 666 Therefore, this statute was intended to constitute a medium between the oppression of the suitors and the avarice of the officers. And as the danger ..
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I agree to the main question. But I would make it a question, if an execution was to issue out of this court, to take a defendant in a city, and the sheriff makes a warrant to a bailiff there, whether he is entitled to the fees in this statute. But if the town be a county of itself, on execution out of this court, he ought to have the fees.
DODERIDGE and WHITLOCK, JJ., assented.
And afterwards judgment was given for the plaintiff. DODERIDGE, JONES, and WHITLOCK, JJ., being of an opinion, and CREW, C. J., of another. JONES, J., cited a case in 19 Jac., Empson v. Bathurst, in the Common Bench, on the same question, where the court was divided. But he was of the same opinion there as here,; and it was adjudged that the sheriff cannot take a double obligation for his fee, inasmuch as the statute gives him his fee but no penalty. Antea, p. 642; Postea, p. 668; Palm., 397; Bendl., 191; Poph., 173; Noy, 75; Cr. 287; Vin., 20 and 50.
