Dwight v. Curtis

The judgment of the court was pronounced by King, J. The plaintiff, suing for himself and for the use of the parish of St. Mary, claims S600 from the defendant, alleging that the latter, while acting as sheriff of that parish, charged and received other and higher fees than those allowed by law, under certain writs of execution, in virtue of which property of the present plaintiff was seized. The defendant pleads a general denial, avers that the allegations of plaintiff’s petition are false and malicious, and claims damages in reconvention. There was a verdict in favor of the plaintiff for SS50, and from the judgment rendered thereon both parties have appealed. The services of the defendant were rendered prior to the adoption of the fee bill of 1845, and the rights of the parties are to be tested by the laws in force previous to that date. The plaintiff relies on the 3d and 17th sections of the act of 181-3, establishing an explicit fee bill. Bul. & Cur. Dig. p. 440, 444. The 3d section of that act declares that the sheriff shall be entitled to demand and receive the fees therein enumerated and no more; and the 17th section provides that, any clerk, sheriff, coroner or other officer, who shall presume to charge,- demand, or receive, any greater, higher, or other fees than are specially mentioned tad defined iff the act, shall be liable" to pay for every of-fence a sum not to exceed fifty dollars, nor less than twenty-five dollars, to be recovered before any competent authority, one half to the use of the person suing and the other half to the use of the parish". The charges made by the defendant, of which the plaintiff complains, are those for notices of seizure", copies of those notices, and mileage for serving them; for notices of sale, and mileage in posting them, and applications to the parish judge for certificates of mortgage. It is contended that aS none of these services are enumerated in the statute establishing the fee bill, the sheriff'is entitled to no compensation for rendering them, and has, by charging and receiving fees, incurred the penalties of the act. "With regard' to the nótices of sale, mileage for posting fheffl, and,the applications to the parish judge for certificates of mortgage, these services have been required by a law passed_ since the adoption of the fee bill; and although the' statute requiring them to be performed has fixed no Compensation for the officer, it is not to be presumed that the legislature intended that they should be rendered gratuitously". In such cases the officer is entitled to" reasonable compensation, and when the rates of similar services are fixed in other cases, those rates should be the standard of his charges. The statute of 1843 requires that th'e sheriff shall post up public notices of sales to be made by him under execution, at three public places. Under this law it has been held that, in the parish of St. Mary, two of these notices must be posted up out of the town in Which the seat of justice is situated. Pumphrey v. Delahoussaye, 9 Rob. 42. In performing that duty travel becomes necessary to distant parts of the parish, and for that service, as well as for writing the notices, the sheriff is entitled, upon every principle of equity, to remuneration, and, in the present instance, the charge made for mileage is" the same which the law allows that officer for serving process of the court.The fees for writing the notices have not been shown to be unreasonable. The charges, however, for notices of seizure and for mileage in serving them,-sannot be made to rest upon the same ground. Those duties were required- to [754] b'e performed before the adoption of the fee bill of 1813. That act makes no provision for the compensation of the sheriff for those services, but expressly forbids him from- making, any other or higher charges than those specified in the act. The act of 1814-; on which-the defendant relies to support his claim for milfeage for notices of seizure,- does not,- in our opinion, authorize that charge.- It provides for mileage in serving the process of the court; but the notice of a seizure made, cannot be considered process, in the legal acceptation of the term;- The defendant has violated the law in each of the bills collected from-the plaintiff. The jury do not appear to us to have awarded to the plaintiff the full-.amount warranted by the evidence. In each of the three bills the charge occurs, for notices of seizure, copies, and mileage for serving them; and the fees illegally received by the defendant amount to $14,24. In this respect the judgment must be-corrected. It is therefore ordered that the judgment of the District Court be amended, and that the plaintiff recover of the defendant eighty-nine dollars and twentyfbur cents, instead of the sum of fifty ^dollars,-the defendant paying the costs of both-courts.-