Batho v. Salter, 1 N.C. 54, 1 Mart. 54 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 54, 1 Mart. 54

Batho vs. Salter.

Pasch. 1 Car.

Action on the case for a promise. The plaintiff counted that one John Green, was indebted to the defendant £. 30, that the defendant sued him &c. so that he was out-lawed: and at Trin. 18 Jac. took a cap. utlagat. against him, and directed it to the sheriff. Then he shews that there was a conversation between him and the defendant, respecting the arrest of John Green ; and the defendant assumed, that in consideration that the plaintiff would procure a special warrant from the sheriff, and arrest John Green, that he would pay him 40s. and he shews how and when he procured the warrant, and arrested John Green, &c. On non assumpsit pleaded, there was a verdict for the plaintiff.

It was moved in arrest of judgment, that the action does not lie. 1. Because the consideration is against the statute *23 H. 6. 20. p. 147. and if it was out of the statute, yet it would be void at common law. For it is an extortion to take a larger fee than the law allows the sheriff or his officers.

Littleton, e contra.

The words of the statute refer to bonds made by the party arrested, or to be arrested; but here the promise is made by the defendant, and not by him, who was to be arrested. In Audley's case 7 Jac. It was resolved, that a bond made by him, who prosecutes the arrest, is not within the statute. But there it was resolved, that if the sheriff himself took such a bond; it is void common law. For he is an appointed minister, and the people are obliged to go to him; therefore no sort of extortion shall be permitted him. 21 H. 7. 19. Bare fees may be enlarged by custom or by the direction of the court. H. 13. Jac. Sherley and Packer’s case. If a sheriff takes more than he is allowed, it is extortion: and a promise to pay it is void. But this case differs for two reasons.

1. Because the sheriff ought to execute virtute officii; and one of the articles in eyre in Fleta was to inquire de vitecomitibus qui munera capiunt. Also it was ordained that no officer of the King should take rewards.

2. The sheriff and his officers in the country, are persons to whom, all are compelled to come; and of necessity must be employed to do execution. If then such promises were tolerated, no execution would be made without. But in this case the plaintiff is not an officer, and the retainer of him was voluntary. As if the defendant had requested me to go with the sheriff and assist him to do execution: and in consideration that I would go, promised to pay me; I have my action. In this case it cannot be extortion, for the request was voluntary. The defendant begged him; and

at the time of the request he was no officer, but afterwards procured a warrant. And this is not like 2 H. 4. 9. and Dyer 324 and 355.

Trotman.

The action does not lie. 29 El. 4. prohibits sheriffs or any of their officers to take &c. for serving an extent or other execution. And this is an execution, for judgment is given before the coroners, that the defendant be out-lawed. Although it be not within the words, it is within the equity of the statute; as an obligation to save the sheriff harmless is within the equity of 23 H. 6. and this is a promise within the statute by the equity of it * 10 Rep. Bewsage’s case, Onesby’s case, 19 El. 42 E. 3. 6.

Whitlock, J.

It is void at common law, and it is the same respecting the sheriff or his officers. 13 Jac. Sherley and Packer’s case. A promise to give to the sheriff or his officers more than the fees is void, being contrary to the common and statute law. There is no difference in this case. The plaintiff arrested John Green, as the sheriff's deputy; it was the sheriff’s act. It is a sale of justice.

Jones, J,

There is no difference in this case. Yet I do not agree that it is the same in the case of a promise to a mere stranger, in case he would go to the sheriff and procure him to arrest I. S. it is a good consideration. As if I promise £. 10 to I. S. for procuring the sheriff to arrest another; whereupon the sheriff makes his warrant to another to arrest I. D. I. S. has a good cause of action, as it was by his procurement, and he is no officer of the sheriff, but in this case the plaintiff was, and the sheriff shall be charged for the escape. Much mischief would ensue, if it was not so, and statutes would be eluded. It is also void at common law.

Doderidge, J.

I concur. He made arrest as a servant of the sheriff. This court has no other immediate officer in temporal matters, except the sheriff, and in spiritual affairs, the ordinary; and every one who does service in this court, acts under his authority. Although the promise was made to him before he was an officer; still it is an act that belongs to the office of sheriff. I agree with Jones, J. and my brother Littleton, in the case put by them; in case of assistance given to the sheriff, for it is not to perform any thing belonging to the sheriff’s office, but merely to assist him; although every one is bound to assist the sheriff, but in this case it is the sheriff’s act. It is void both by statute and at common law.

Crew, C. J.

I grant it. But I doubt the last case of assistance given to the sheriff.

It was also doubted whether it is contrary to common law; because it is for the furtherance of justice, and at this day, if common fees only were given, executions would be made ad Græcas Calendas.

Quærens nil cap. per billam. Jones 65. Bendl. 138. 147. Noy. 76. 1 Rol. 16. Roll. rep. 313.