Emerson v. Lombard

The case was continued for advisement, and the opinion of the Court was prepared by Weston C. J. Whether the imprisonment complained of is justified or not, will depend upon the question, whether the plaintiff, while under arrest, tendered to the officer the full sum, for which he was liable, upon the execution. The plaintiff had been cited, under the act of 1831, c. 520, <§> 3, and had made default. The seventh section of the same statute determines the fees, to which the justice, who issues the notice, and the justices, before whom the disclosure is appointed to be made, shall be entitled, to be paid by the party applying therefor. The twelfth makes provision, where the debtor is about to go out of the State. And it gives to the justices “ the same fees as are allowed, for like services, in and by the seventh section of this act, to be taxed on the mesne process or execution, with the other costs of the creditor, or creditors, if he or they shall be the prevailing party on such disclosure.” As it is the general policy of the law, to allow costs to the prevailing party, and as the recovery of the costs, provided for under the seventh section, in favor of such party, is no where else determined in the statute, we are of opinion, that it was the intention of the legislature, that the costs under the seventh, as well as under the twelfth section, should be taxed for the creditor on the execution, if he should be the prevailing party. They were to be the [460] same fees, to be taxed and allowed in the same manner, Where the debtor was adjudged to be the delinquent party, it does not appear to us to have been the design of the law, to throw upon the creditor any part of the costs, incurred in enforcing the collection of his debt. And it appears to us, that the certificate of the municipal Judge of what had been done, and the entry of the accru- ' ing costs in the margin of the execution, was taxing the same there-.on, and sufficiently complied with the requisition of the statute. A more detailed authentication of these proceedings remained for the inspection of the debtor, in the office of the Judge. There is no legal objection to the fees of the justices, which are expressly given, whatever may be said of the fee, claimed and allowed to the officer. It results then, that the plaintiff did not tender enough, and the justification under the execution is sustained. In Gordon v. Edson, 2 N. H. Rep. 152, the ' fees for committing were held not to be due, until after the commitment, and that the debtor there* fore could not be said to be committed for these fees, although he might be detained in prison, until they were paid. The costs here were due before the arrest. The decision there turned upon the form of the execution. These costs depend upon a special statute. New trial granted,.