Aechternacht v. Watmough

The opinion of the Court was delivered by Rogers, J. If, as has been contended, the sheriff incurs a penalty by taking from a suitor a sum which in the aggregate is greater in amount than he is entitled to exact for the services performed, the court was wrong in arresting the judgment; otherwise the judgment must bev affirmed. The pleader seems to have been under the impression that all that is necessary for the plaintiff to prove was, that the sum paid exceeded the fees allowed by the fee-bill for all the services performed by the officer in the execution of his duty. It was under this construction the narr. was framed. The declaration is very general, charging the offence to be in taking from the plaintiff, as fees for services done by the defend [164] ant in his office of sheriff on a writ oí fieri facias, other and greater fees than are allowed by the Act of Assembly. The plaintiff wholly omits to specify in his count the particular service for which the illegal fee was exacted. But that this form of declaration is erroneous, there can be no doubt; for the rule is, where a statute gives a remedy, the party seeking the remedy should under his plaint or information allege all the facts necessary to bring him within the statute. Drum v. Simpson, (2 Mass. 444). And where a penal statute gives no form of declaring, the plaintiff must set out specially the facts which constitute the offence. Bigelow v. Johnson, (13 Johns. 428). The declaration sets out an offence, we think, not warranted by the Act. The sheriff is bound, in the execution of the duties of his office, to perform various services, for each of which he is entitled to a distinct fee; and the Act prescribes that no officer shall take greater or other fees than is expressed and limited for any service (in the singular number) to be done by him in his office. In order, therefore, to convict for the penalty, it is necessary to aver in the narr. the particular service out of the many enumerated in the Act, for which he took a greater fee than is allowed by the fee-bill. And this construction is required for the security of the officer; for otherwise he may incur a penalty for error in the addition of his bill of costs; for it must be remembered that taking an illegal fee constitutes the offence, without regard to the quo animo, or the inquiry whether it was exacted from error or design. Nor have the suitors much cause of complaint, as they may, if they choose, protect themselves from imposition by refusing to pay fees, where the officer, when required, refuses to make out a bill of particulars as prescribed by the Act, signed by him, and also a receipt or discharge for the fees paid. When this precaution is taken, an illegal fee cannot be exacted without furnishing the party at the same time, with the evidence competent to convict the offender of the penalty prescribed in the Act. It is, therefore, in the power of every suitor to protect himself from the payment of illegal fees, or if exacted to point to the item for which the illegal fee is taken. And this section of the Act also furnishes an argument of no inconsiderable force against the construction put upon it by the plaintiff’s counsel. Whether the law, as it now stands, will prevent those extortions of which such frequent and just complaints are made, is not for us to say. The remedy, if any is required, is with the Legislature. I may, however, be permitted to remark, that as long as the officer is allowed a fee for each of the numerous services he is bound to perform, so long will abuses continue to exist. And the only efficient remedy which occurs to my mind is to simplify the fee-bill in such a manner that it may be easily understood by suitors, making the items to consist of as few particulars as possible, and allowing a gross sum for all services included in some general classification. [165] As long as it consists of such a variety of items, we must expect to hear of different rates of charge in different counties, and of palpable extortions, which it is next to impossible for those who are necessarily ignorant of the fees to prevent. It is impracticable for men to protect rights which they do not understand, and which it is difficult for them to comprehend. And perhaps also it might prove some restraint upon officers to compel them, under a penalty, to give a bill of particulars in all cases, whether required or not. It is said in Jackson v. Purdue, (3 P. R. 523), speaking in reference to the penalty under the fee-bill, that the Act of Assembly, although it inflicts a penalty, is a remedial Act, and as such should, receive such a construction as to carry into effect the intention of the Legislature, provided it may be done without violence to the words of the Act. It is a mistake, which I have no hesitation to acknowledge, to call it a remedial Act; for it is in truth a penal statute, and as such must be strictly construed. But although unfortunately expressed, all that was intended in that case was, that where it comes within the words of the Act, the intention of the Legislature, as in other cases, is the governing rule of construction. As this is a case of a defect of title, and not a title defectively stated, the error in the narr. is not cured by verdict. Judgment affirmed.