Johnson v. Burnham

The opinion of the court was delivered by Bennett, J. This is a most palpable case of taking illegal fees by the defendant. The copies were charged at three dollars each, when the case shows, that each copy, at the rate of charge fixed by the statute, would amount only to eighty five cents. The facts were all before the defendant; and as it is to be taken, that every roan knows the law, no question can arise as to the scienter and motives of the defendant. The only question, which can be made, is, whether the plaintiff is the party aggrieved. The sixteenth section of chap. 106 of the Revised Statutes provides, that if any officer, or other person, shall receive any greater fees, than is provided by law, he shall pay to the person aggrieved ten dollars for each dollar excess of fees, so received, and in the same proportion for a greater or less sum. The plaintiff is the only person, who has paid the defendant the money. The defendant served the writ on Norton upon the credit of the plaintiff, and while the suit against Norton was pending he presented his account to the plaintiff for payment, and the plaintiff paid him. The extortion, to be punished by a penalty against an officer, who receives more than lawful fees by color of his office, implies a right in the officer to demand fees of the person who pays them. The officer had no claim for fees against Norton, and none could be demanded of him by the defendant, under color of his office. The defendant received the illegal fees from the plaintiff, and from no other source. [641] The right of action was complete, when the money was paid, and the statute of limitation would then commence running. The fact, that the illegal fees were subsequently taxed in the bill of costs against Norton, and collected by the attorney from him,, cannot affect the merits of the question. If they were corruptly taxed by the attorney of the plaintiff in that action, or by the clerk, a new offence would arise under the previous sections of the statute, and the defendant in that action would be the party aggrieved and might well sue for the penalty. The judgment of the county court is reversed, and the cause remanded to the county court.