Joslyn v. Tracy

The opinion of the court was delivered by Kellogg, J. Several questions have been presented for our consideration; but it will only be necessary to examine one, as that will dispose of the case. It has been urged, that the rejoinder is insufficient, inasmuch as it concludes with a verification, when it is insisted it should have concluded to the country. This exception, we think, is not well taken. The rejoinder introduces new matter, showing that the defendant was entitled to and claimed travelling fees in addition to the tax, and that consequently the tender was insufficient. It is a well settled rule of pleading, that, whenever the pleader introduces new matter in any of the pleadings, the plea should conclude with a verification. The rejoinder is therefore, in this particular, well [572] enough. Some other objections have been taken to the form of the rejoinder; but we do not think these formal exceptions can be sustained. But the important question arising upon the rejoinder, and which is the principal matter of controversy between the parties, is, whether the defendant, under the circumstances set forth in the rejoinder, is entitled to travelling fees. If he was not entitled to charge and claim such fees of the plaintiff, then the rejoinder is no sufficient answer to the replication. It is urged, that the law allows the collectors of taxes to tax the same fees as sheriffs for levying executions; and it is insisted, tli at the right of sheriffs to charge fees upon executions arises upon the levy of the same, and that only, and that, as no distress was made by the defendant, he was not entitled to fees; and the case of Barnard v. Stevens, 2 Aik. 429, is relied upon, to support this position. That case only decides, “ that if the amount of an execution be paid and satisfied to the party, and he endorse the same on the execution, after it is in the hands of the officer, but before he has made any levy thereof, the officer is not entitled to fees thereon.” But suppose the amount of the execution had been paid or tendered to the officer, holding the execution, and before any levy was made, will it be pretended that he is not entitled to his fees ? Is he bound to receive the money, and without any compensation? We know of no authority to sustain such a doctrine. The sheriff, in such a case, is unquestionably entitled to charge his fees to the execution debtor. So in the case at bar, if the defendant had travelled from Morris-town to Brownington for the purpose of making a distress for the non-payment of the plaintiff’s tax, he having previously repeatedly called upon the plaintiff to pay the same, which he refused to do, as is alleged in the rejoinder, we entertain no doubt he was entitled to exact of the plaintiff his travelling fee, in addition to the tax. The plaintiff could not, after the defendant had performed the travel and was about to make the distress, by tendering the amount of the tax defeat the defendant’s right to his fees. And inasmuch as the tax and the defendant’s travel fee amounted to more than the sum tern dered by the plaintiff, the tender was insufficient, and the rejoinder was sufficient. As this disposes of the case, it will be unnecessary to consider the remaining questions in the case. The judgment of the county court is affirmed.