Gregg v. Crabtree

Mr. Chief Justice Walker delivered the opinion of the Court: This record presents the question whether the clerk may tax as sheriff’s fees a sum claimed for milage, when the distance traveled is not specified in his return. By section 11 of the act of 1849 (Scates’ Comp. 513), it is enacted, that “ It shall be the duty of each sheriff entitled to mileage under this act, to indorse on each writ, summons, subpoena or other process that he may execute, the distance he may travel to execute the same, ascertaining the distance and the charge properly allowable therefor, in conformity with the foregoing regulations.” This requirement is positive and unconditional in its terms. And it was evidently the design of the law makers to give the person chargeable with the payment explicit information of what the various items with which he was charged consisted. But the statute has positively required that the act shall be done, and there is no other -authority that can dispense with its performance. By the 28 th section of the cost act of 1845, the clerk is required to make and set down a fee-bill in each case, after each term of court, in a book to be kept for that purpose, including the costs of the sheriff and other officers. This provision seems to require something more than merely copying the various items of costs into a book. He is required to make, as well as set down, a fee-bill. In making a fee-bill, he can only allow, or set down, legal charges, whether of his own or of other officers. When he sees that charges are made for services never rendered, or for more than the statute has allowed, or when they are returned contrary to the requirements of the statute, he should reject and disallow them. The law has imposed upon the clerk the duty of taxing the costs in all cases in court, and in doing so he must be governed by the statute. He must pass upon the legality of the various items charged, and will not be warranted in allowing more than the statute has fixed, nor for charges not returned in pursuance to the requirements of the statute. In this case, the sheriff having failed to specify in his return the number of miles traveled in serving the process, the clerk, in making the' fee-bill, should have rejected the charge. And the court below did right in quashing the fee-bill and replevin bond. The judgment is affirmed. Judgment affirmed.