Preston v. Bacon

4 Conn. 471

• Court: Supreme Court of Connecticut
• Decided: June 15, 1823
• Status: Published

Opinion

Hosmer, Ch. J.

The plaintiff, a deputy to the sheriff of Litchfield county, having in his hands an execution for service, levied it on the bodies of the defendant and one Whittlesey, at Roxbury; and thence proceeded with them towards the county gaol, as far as Woodbury. At this place, without the advice, assistance, or interference of the plaintiff, the execution creditor received of the said Bacon, lands at appraisement, in full satisfaction of the execution. Before the plaintiff would release Bacon and Whittlesey from custody, he demanded as fees on the execution, one hundred dollars; to secure the payment of which, the defendant gave the promissory note in suit. If the service of the execution is considered as being merely equivalent to a commitment of the defendant and Whittlesey to gaol, the aforesaid note transcends the legal allowance, by nearly thirty dollars. But if the plaintiff was entitled to a commission on the debt, as having been secured and satisfied by him, the consideration of the note is unexceptionable.

The statute for regulating salaries and fees, p. 393. has prescribed the allowance to officers for levying and collecting executions. By the English common law, the sheriff is not entitled to fees for his official services. 3 Bac. Abridg. 120. tit. Fees; and no quantum meruit is applicable to this subject. The legislature of this state, from time to time, with no inconsiderable solicitude to prevent the extortion of officers, has made laws to reduce the allowance for their services to a known and absolute certainty; and in the 13th section of the act before-mentioned, has declared; that “no sheriff, constable, or other officer, shall add or make any other items of fees, not specified in this act, for the service or return of any civil process whatever, nor for any other purpose, in civil causes, but shall be wholly confined to the fees in this act specified." To remunerate an officer for meritorious service in the levy of an execution, or by reason of his having been the remote cause of an important benefit to the creditor, would be in the face of the prescription and prohibition of the above statute. The 12th section of the law has defined the rule of allowance, by monuments, which we may not disregard, and by which we must implicitly be governed. It has provided; “Where the money is actually collected and paid over, or where the debt is secured and satisfied by the officer, to the acceptance of the creditor, when the amount of the execution does not exceed three dollars and thirty-four cents, the officer collecting the same shall be allowed seventeen cents, and two per cent. on the amount of the execution, above that sum; and when the execution shall be levied on the body of the debtor, and he committed to gaol, one per cent. on the amount of the execution shall be allowed the officer, and no more.” When a statute is expressed in terms, clear, precise, and susceptible only of one sense, the meaning of the law is free from all possible doubt. This is the character of the above section for the regulation of fees. The first clause of the section relates to “money actually collected and paid over;" within which expression it is not pretended, that the services of the plaintiff are embraced. The next clause provides fees, “where the debt is secured and satisfied by the officer, to the acceptance of the creditor.” In the case under discussion, the debt was secured by the creditor, and not by the officer, nor by his advice, assistance, or interference. In no possible sense, directly or indirectly, can he be said to have secured the debt in question.

It has been contended, however, that he falls within the reason of the law, on account of his having arrested the bodies of the debtors, and thus become the remote and accidental cause of the debt’s having been secured. On this pretext of meritorious agency, I do not know why a sheriff, who has committed to gaol a debtor on execution, which commitment operates to bring forth the secret hoards of cash, and to compel payment of the debt, should not be compensated for having paid the creditor’s demand. The statute meant to designate services, of which the officer was the direct and immediate agent, as the subject of a specific allowance, and not to remunerate him for the contingent results of his official acts. It never was intended to confer upon an officer, a gratuity, for the casual benefits derived from his services; nor to make the acquisition of the creditor the measure of his allowance. This is not the legal rule of compensation to any agent; much less is it to him, whose reward is defined with the most perfect certainty. The basis of the allowance to a sheriff, is, his trouble and risk; or, in other words, his actual service and responsibility. To confer on him an extraordinary commission, for having secured and paid a debt, when he did neither, but arrested the body only would be to reward him for services he never performed, and a responsibility he never assumed. Had the plaintiff levied on the property of the debtors, and, before the sale of it, the creditor had received payment of his debt in some other manner, the demand of the officer, as I shall endeavour to evince, would have been within the intendment of the law.

The last clause of the section on which I am commenting, declares, that “when the execution shall be levied on the body of the debtor, and he committed to gaol, one per cent. on the amount of the execution shall be allowed to the officer, and no wore.” The bodies of the debtors, in the case before us, were levied on; and while on the way to the gaol, the creditor received the payment of his debt; and the consummation of the service begun, by a commitment of them to prison, was thus prevented. The officer, in my judgment, had acquired a right to the same allowance, as if he had actually imprisoned the debtors. This construction of the statute is enforced, by the determinations of courts in analogous cases. The act of 29 Eliz. c. 4. allows poundage on the sum which the sheriff levies or extends, and delivers in execution. Under this law, in Alchin v. Wells, 5 Term Rep. 470., it was determined, if a sheriff levy under a fi. fa., he is entitled to his poundage, though the parties compromise before he sells any of the defendant’s goods. The same principle of construction was adopted, by the supreme court of the state of New-York, in Hildreth v. Ellice, 1 Caines 192. and in Adams v. Hopkins, 5 Johns. Rep. 252., and in Scott v. Shaw, 13 Johns. Rep. 378. The words of the statute did not warrant these determinations, but they were justly considered to be within its reason and spirit. In the former case, it was correctly observed by Thompson, J., “to say that a sheriff shall be entitled to no poundage, when a compromise takes place, would be manifestly unjust. He may have incurred all the risk and responsibility for the safe-keeping of the property; and it will then be in the power of the parties, to deprive him of compensation for it.” It is said by Sir Wm. Blackstone, that “where some collateral matter arises out of the general words” (of a statute) “and happens to be unreasonable, there the judges are in decency to conclude, that this consequence was not foreseen by parliament; and therefore, they are at liberty to expound the statute by equity, and only quoad hoc disregard it.” 1 Comm. 91. Now, it would be most unreasonable to infer, that the legislature intended to deny an officer, a competent allowance for all the risk and responsibility he had assumed, in the course of his official duty. If the sheriff were defeated, by such a construction of the statute, as would infallibly subject him to uncompensated risk and responsibility, it would be enormously unjust. Suppose an officer levies an execution on the body of a debtor, and takes him to the door of the gaol, at the distance of many miles from the place of arrest; but that his actual commitment is anticipated, by the settlement of the parties. Here, the whole service, virtually, would be performed, and the whole risk and responsibility undergone. It can never be believed, that the legislature intended to countenance, much less, to prescribe injustice so flagrant, as that the sheriff, in the case supposed, should only have his fees for travel. But a construction of the statute, requiring an actual commitment, as the necessary price of poundage, would infallibly be followed by the consequence alluded to. From the premises, I deduce this general rule, as expressive of the reason and spirit of the law, that if an officer levy an execution on property, or on the body, and is prevented, by the compromise of the creditor with the debtor, from further proceeding, he is entitled to the same fees, as if the service begun had been actually consummated. It is, therefore, my conclusion, that the sum included in the note now in suit, is beyond the legal allowance; although it would not have been, if the commission of one per cent. in addition to the officer’s travel, had been exacted.

A contract for any matter or thing, against the prohibition of a statute, is void, although the statute does not declare it to be so. Bartlett v. Vinor, Carth. 252. 1 Com. on Contr. 58. Farrar v. Barton & al. 5 Mass. Rep. 395. The promissory note in question is likewise void, on the ground of extortion, which is defined to be, any oppression by colour or pretence of right, and particularly the exaction by an officer, of money, by colour of his office, either when none at all is due, or not so much is due, or when it is not yet due. Co. Litt. 368. b. Beaufage's case, 10 Co. 102. a. 1 Hawk. P. C. 170. Com. Dig. tit. Extortion. A. 1. The determinations on this subject have been numerous, and fully establish this principle, that where an officer, colore officii, detains the person or property of another, or refuses him a benefit to which he has a legal right, until money has been unduly paid, the proceeding is illegal, and the money recoverable, in an action for money had and received. On the same ground, a contract to pay more than is due, is unquestionably void. Astley v. Reynolds, 2 Stra. 915. Stevenson & al. v. Mortimer, Cowp. 805. Irving v. Wilson & al. 4 Term Rep. 485. Miller v. Aris, 3 Esp. Rep. 231. Snowdon v. Davis, 1 Taunton 359. Carey v. Prentice, 1 Root 91. Bates v. New-York Insurance Co., 3 Johns. Ca. 238. Ripley & al. v. Gelston, 9 Johns. Rep. 201. Clinton v. Strong & al. 9 Johns. Rep. 370.

As the result, I am clearly of opinion, that the note in suit, is founded in extortion; and that the defendant, for this reason, is entitled to judgment.

Chapman, Brainard and Bristol, Js. were of the same opinion.

Peters, J.

If the statute, under which the question arises, in this case, is to be construed strictly, judgment must be rendered for the defendant; for the plaintiff’s claim is not within the words of the statute, as the money was not “actually collected and paid over,” nor was “the debt secured and satisfied, by the officer, to the acceptance of the creditor,” nor was “the execution levied on the body of the debtor, and he committed to gaol. Stat. 393. (tit. 83. sect. 13.) Is the officer, then, to run the hazard of taking two men in execution for nearly 7000 dollars, and carrying them half way to prison, for the pittance allowed for travel? The statute ought to have a reasonable construction. The debt has been secured and satisfied, to the acceptance of the creditor, not indeed by the mere act of the officer; but he was a principal actor in the transaction. By the direction of the creditor, whose agent he was, he arrested the debtors, carried them six miles towards the prison, went out of his way to meet the debtors’ attorney, and held them in custody during the negotiation for a settlement, and until the compromise was affected. Could this have been done without his aid? If so, why was he called upon, and detained? Had the money been counted in the presence of the parties and the officer, and handed directly to the creditor, by the debtor, in the presence of the officer; or had property been seized and released, under a similar compromise; surely, the officer would have been entitled to his percentage, not as having actually collected or paid over, or secured the debt within the letter of the statute, but as having done equivalent acts. The debtors were not in gaol, but the debt was paid. In Alchin v. Wells, 5 Term Rep. 470. it was decided, that if the sheriff levy a fi. fa. he is entitled to poundage, though the parties compromise before the sale. But the statute 29 Eliz. c. 4. only allows poundage on the sum, which the sheriff levies (i. e. collects) or extends and delivers in execution. So in Hildreth v. Ellice, 1 Caines 192. Thompson, J., in delivering the opinion of the court, in a similar case, under a similar statute, remarks, that “to say that the sheriff should be entitled to no poundage, when a compromise takes place, would be manifestly unjust.” Suppose that on the very day of sale, and before the vendue commences, the debtor should pay the sheriff the money, would he not be entitled to his poundage? I can see no material distinction whether the money be paid to the creditor, or to the sheriff, in this stage of the business. I, therefore, think, that the plaintiff is entitled to judgment.

Judgment to be entered for defendant.