The opinion of the court was delivered by
Redfield, J.
1. The defendant moved to dismiss the action for want of original jurisdiction in the county court. We think the motion was correctly overruled. From the ultimate decision of this court it will be seen that the plaintiff might have had reasonable ground of expectation of recovering more than one hundred dollars. And we have long since adopted the rule of decision, in regard to conflicting jurisdiction between the county court and justices of the peace, not to turn the party out of the county court, in a case admitting of reasonable doubt as to the amount in dispute exceeding one hundred dollars. Kittridge v. Rollins, 12 Vt. 541.
2. We do not think the variance between the date of the return upon the warrant and the time of the arrest and commitment, as'alleged in the plaintiff’s declaration, is material. The process, not being returnable process, could not properly be vouched as proof of any fact; — and it is only in those cases where -record proof is vouched as proof of a fact happening upon a certain day, that the date becomes descriptive of the record, and a variance consequently ' fatal. • The merely averring that a fact occurred upon a particular day, which may be proved by merely oral testimony,, but which, on trial, is in fact proved by the written admission of the opposite party, [485]*485does not make the date of the admission material. If the declaration had alleged that the return bore date the seventh day of May, this would have been descriptive of the return, — but not when it is alleged that the arrest and commitment happened upon that day.
3. The declaration might have been defective, for not specifying the items of illegal fees taken by the defendant, and bad upon demurrer, but not on motion in arrest of judgment. After verdict all reasonable presumptions will be made in favor of the pleadings.
4. The main question in the case is one of importance, and upon which there have been no decisions of this court. The course of the history of legislation upon the subject will best interpret the statute now in force. Two questions seem to naturally arise here. 1. Whether any officer is entitled to demand fees for services performed, but for which there is no fee given in the statute ? 2. If so, whether an officer exposes himself to the penalty for taking illegal' fees, by taking excessive fees for services not specified in the fee bill; or only for that class of services, where a fixed compensation is given by law?
Upon the first point, we refer to the history of legislation, as tending to elucidate it. There seem to have been fee bills enacted by the legislature almost every year from 1779 to 1783, but nothing from which we can infer whether any other fees, than those specified, were to be allowed to any- officer, until the latter year. In 1783 the enacting clause is as follows, — “ That the fees to be taken by the several officers in this State, herein after mentioned, so far as the same are particularly enumerated, be as follows, viz.” This same form is adopted in the Revision of 1787. From this phraseology we infer that the legislature intended to distinguish be-, tween “ enumerated ” and fl non-enumerated” fees. In the Revision of 1798 the act establishing the fee bill expressly enacts, that a specified number of officers, among whom are sheriffs, which, as to fees, will include constables and collectors, and “ all other persons, whose duty it may be to record any proceedings, or give any copies, attestations, or certificates, &c., shall be allowed seven cents for every hundred words, and for every other duty, or service, done, or performed, such sum as shall be in proportion to the fees specifically provided by this, or any other act, for such officers respectively.” This same provision was virtually re-enacted in the [486]*486fee bill of 1821, and in the late Revised Statutes. It has long since received a practical construction, of giving non-enumerated fees to all persons, who are required, by law, to perform services, for which no fees are specifically fixed.
It is certainly difficult to conjecture any good ground, upon which a general allowance should be made to certain officers for all “ duty, or service,” where no specific fee is provided, and not extend the same provision to all officers. Such, certainly, has always been the practice under this, and similar statutes since; and the form of the present statute seems to justify such a construction. It is as follows, — “ All officers and persons — whose duty it may be to record any proceedings, or give. any copies, other than such for which fees'shall be 'established by law, shall be allowed therefor seven cents for each folio — and for any other services performed, such sum as shall be in proportion to the fees established by law.” I have adopted the dash, instead of the comma, in punctuation, which shows more clearly how the construction should be, and, indeed, 'must be, to avoid partiality and absurdity. For if we regard the provision as merely intended to give a general compensation for recording and certifying, the conclusion is wholly unnecessary, and, in terms the most unequivocal, extends to (ill “ other services performed." Why, then, the question arises, should clerks be paid for all other services, and not every other officer, or person1*. The question, I apprehend, is unanswerable, unless we conclude the legislature intended to discriminate in favor of recording and certify, ing officers, not only as to those acts, but all other acts performed,— which is too absurd to be entertained.
We conclude, then, that the present Revised Statutes do provide, that “ All officers and persons shall be allowed for all other services, than such for which fees shall be established by law, performed [by them,] such sum as shall be in proportion to the fees established by law." This was doubtless the object, in enacting the eighth section of the 107th chapter, which has been cited above; — but in regard to records and copies not enumerated, they wished to fix the compensation by the folio. In attempting to combine the two objects a form of expression was adopted, that seemed to exclude all other officers, except recording and certifying officers,— but not necessarily excluding them, — and the necessity of the case [487]*487compels us to include them, at the expense of forcing, the construetion'of the words of the act, in order to avoid so gross an absurdity as the literal interpretation would lead us into.
2. If, then, by express provision of the statute, all officers are entitled to compensation for all official services, by them performed, when no fees are established by law, in proportion to those which are established, the question arises, what are illegal fees 1 — -and how are they to be taken 1 Does the mere act of taking subject the person to the penalty ? or must it be done knowingly, malo animo
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The opinion of the court was delivered by
Redfield, J.
1. The defendant moved to dismiss the action for want of original jurisdiction in the county court. We think the motion was correctly overruled. From the ultimate decision of this court it will be seen that the plaintiff might have had reasonable ground of expectation of recovering more than one hundred dollars. And we have long since adopted the rule of decision, in regard to conflicting jurisdiction between the county court and justices of the peace, not to turn the party out of the county court, in a case admitting of reasonable doubt as to the amount in dispute exceeding one hundred dollars. Kittridge v. Rollins, 12 Vt. 541.
2. We do not think the variance between the date of the return upon the warrant and the time of the arrest and commitment, as'alleged in the plaintiff’s declaration, is material. The process, not being returnable process, could not properly be vouched as proof of any fact; — and it is only in those cases where -record proof is vouched as proof of a fact happening upon a certain day, that the date becomes descriptive of the record, and a variance consequently ' fatal. • The merely averring that a fact occurred upon a particular day, which may be proved by merely oral testimony,, but which, on trial, is in fact proved by the written admission of the opposite party, [485]*485does not make the date of the admission material. If the declaration had alleged that the return bore date the seventh day of May, this would have been descriptive of the return, — but not when it is alleged that the arrest and commitment happened upon that day.
3. The declaration might have been defective, for not specifying the items of illegal fees taken by the defendant, and bad upon demurrer, but not on motion in arrest of judgment. After verdict all reasonable presumptions will be made in favor of the pleadings.
4. The main question in the case is one of importance, and upon which there have been no decisions of this court. The course of the history of legislation upon the subject will best interpret the statute now in force. Two questions seem to naturally arise here. 1. Whether any officer is entitled to demand fees for services performed, but for which there is no fee given in the statute ? 2. If so, whether an officer exposes himself to the penalty for taking illegal' fees, by taking excessive fees for services not specified in the fee bill; or only for that class of services, where a fixed compensation is given by law?
Upon the first point, we refer to the history of legislation, as tending to elucidate it. There seem to have been fee bills enacted by the legislature almost every year from 1779 to 1783, but nothing from which we can infer whether any other fees, than those specified, were to be allowed to any- officer, until the latter year. In 1783 the enacting clause is as follows, — “ That the fees to be taken by the several officers in this State, herein after mentioned, so far as the same are particularly enumerated, be as follows, viz.” This same form is adopted in the Revision of 1787. From this phraseology we infer that the legislature intended to distinguish be-, tween “ enumerated ” and fl non-enumerated” fees. In the Revision of 1798 the act establishing the fee bill expressly enacts, that a specified number of officers, among whom are sheriffs, which, as to fees, will include constables and collectors, and “ all other persons, whose duty it may be to record any proceedings, or give any copies, attestations, or certificates, &c., shall be allowed seven cents for every hundred words, and for every other duty, or service, done, or performed, such sum as shall be in proportion to the fees specifically provided by this, or any other act, for such officers respectively.” This same provision was virtually re-enacted in the [486]*486fee bill of 1821, and in the late Revised Statutes. It has long since received a practical construction, of giving non-enumerated fees to all persons, who are required, by law, to perform services, for which no fees are specifically fixed.
It is certainly difficult to conjecture any good ground, upon which a general allowance should be made to certain officers for all “ duty, or service,” where no specific fee is provided, and not extend the same provision to all officers. Such, certainly, has always been the practice under this, and similar statutes since; and the form of the present statute seems to justify such a construction. It is as follows, — “ All officers and persons — whose duty it may be to record any proceedings, or give. any copies, other than such for which fees'shall be 'established by law, shall be allowed therefor seven cents for each folio — and for any other services performed, such sum as shall be in proportion to the fees established by law.” I have adopted the dash, instead of the comma, in punctuation, which shows more clearly how the construction should be, and, indeed, 'must be, to avoid partiality and absurdity. For if we regard the provision as merely intended to give a general compensation for recording and certifying, the conclusion is wholly unnecessary, and, in terms the most unequivocal, extends to (ill “ other services performed." Why, then, the question arises, should clerks be paid for all other services, and not every other officer, or person1*. The question, I apprehend, is unanswerable, unless we conclude the legislature intended to discriminate in favor of recording and certify, ing officers, not only as to those acts, but all other acts performed,— which is too absurd to be entertained.
We conclude, then, that the present Revised Statutes do provide, that “ All officers and persons shall be allowed for all other services, than such for which fees shall be established by law, performed [by them,] such sum as shall be in proportion to the fees established by law." This was doubtless the object, in enacting the eighth section of the 107th chapter, which has been cited above; — but in regard to records and copies not enumerated, they wished to fix the compensation by the folio. In attempting to combine the two objects a form of expression was adopted, that seemed to exclude all other officers, except recording and certifying officers,— but not necessarily excluding them, — and the necessity of the case [487]*487compels us to include them, at the expense of forcing, the construetion'of the words of the act, in order to avoid so gross an absurdity as the literal interpretation would lead us into.
2. If, then, by express provision of the statute, all officers are entitled to compensation for all official services, by them performed, when no fees are established by law, in proportion to those which are established, the question arises, what are illegal fees 1 — -and how are they to be taken 1 Does the mere act of taking subject the person to the penalty ? or must it be done knowingly, malo animo ? Here, too, there is some difference in the phraseology used in giving the penalty against different officers, which, if interpretéd literally, would lead to a very absurd discrimination in favor of certain classes of persons, — which is the last thing a legislature should be supposed to intend, unless they have very clearly so expressed themselves. “ Equality is equity ” in legislation, as well as every where else. We shall present the sections referred to. Sect. 14. “ If any clerk of the county or supreme court, in taxing any bill of cost, shall knowingly include a greater sum, than is provided for by law, he shall be liable to pay the person aggrieved the sum of ten dollars for each dollar excess of fees, that should be included in such bill of cost, and in the same proportion for a greater or less sum.” Sect. 15. “ If any attorney, or other person practising before any court, shall knowingly make up, take, or receive, a greater sum, in any bill of costs, than is provided for by law, he shall pay to the person aggrieved,” &c. Sect. 16. “ If any officer, or other person, shall receive any greater fees, than is provided for by law, he shall pay,” &c.
Here seems, in terms, a plain provision, that, if any attorney shall knowingly make up, take, or receive, any greater sum, &c., and if any other officer, or person, shall receive, whether knowingly, or not, he shall be subjected to the tenfold penalty. Any man, at all acquainted with the state of public feeling, would least of all look for a discrimination in favor of attorneys in regard to receiving fees; and perhaps no good reason can be conjectured, why they should only be liable on proof of knowledge, and all others should be pre. sumed to have knowledge of the illegality of fees taken by them-The reasonable presumption, perhaps, would be, that those most learned in the law would be less likely to offend ignorantly. The [488]*488truth is, no doubt, that no such discrimination was intended to be made. The present Revised Statute, upon this subject, is almost a literal transcript from the statute of 1821, except that there it is all in one section, and What now forms the sixteenth section is a mere summing up of the general provision, and extending it to all persons. This general sweeping clause] would be supposed to be, in some sense, qualified and explained by the former part of the same section, when the word “ knowingly ” is twice used as to clerks and attorneys, and is omitted in the general clause merely for the sake of euphony, being, from its juxta position, almost necessarily implied. But when this general clause,comes to be made a distinct section, the implication of the word knowingly is not so natural and obvious, as when it was all one section.
It has sometimes been attempted to get rid of this apparent absurdity, by resort to another different form in the phraseology of the different sections of the present statute. In the fourteenth and fifteenth sections the expression is, any “ greater sum,’’ — in the sixteenth section, any “ greater fees.” The supposition has sometimes been made,'that this was intended to be confined to such fees only, as are enumerated in the fee bill. But a recurrence to the history of legislation will here best explain the import of the present statute.
The first statute giving a penalty for taking illegal fees, passed in this state, was in 1802, and was as follows, — extending ;only to attorneys, sheriffs, deputy sheriffs, bailiffs and constables, — -" If any of the persons aforesaid shall knowingly and wilfully demand and receive any more or greater fees, for any services by them, or either of them, performed, than is allowed them by law, or shall demand and receive fees for services not performed, (unless it be for services which he is obliged by law to perform after receiving such fees,) he shall forfeit and pay to the party aggrieved four fold,” &o. This statute continued in force until 1821, when it was extended to all officers and persons, and increasing the penalty to ten fold. No other alteration seems to have been intended to have been made in the law. The difference in the use of terms was doubtless merely accidental at the time, and has been adopted into the present revision.
We conclude, then, that if any officer, or other person, knowingly take any more or greater fees, that is, fees enumerated, or not enumerated, or for services not performed, (and which he is not bound [489]*489to perform, and when there is no substitution of one service for another, done fairly and bona fide, and not for the oppression of the person paying such fees,) that such person is liable to the penalty. The proof will be different in different cases; but must usually be a question of fact, to be determined under all the circumstances of the case.
In the present case the officer was clearly not entitled to pay for travel, except actual travel one way in the commitment, there being no return necessary ; — 'but such a practice might have led him to conclude he was. The charge for “ conveyance ” is not, under ordinary circumstances, allowable; for if a man is able to endure a confinement, he is usually able to travel on foot, in order to reach the place of confinement; and the officer may walk with him, if he choose; or he may ride, and carry his prisoner at the same fee. This is an item of fees of modern invention, — at least in common cases of commitment for debt. The price of the copies may be determined by the number of words.
Judgment reversed, and new trial.