#### Walden and Gesner vs. Ursy and Ursy.

Pasch, 1 Car.

Walden and Gesner, sheriffs of Coventry and Lichfield, brought debt against Ursy and Ursy, for £. 7 o 6d. for fees for apprehending T. who was condemned to pay the defendant £. 181, on a writ to them directed out of this court. They pleaded that by 28 El. no sheriff &c. shall take for serving any execution, more than is limited in the statute, viz. 1s. for every 20s. where the sum does not exceed £. 100, and 6d. for every 20s. over and above the said sum of £. 100. The defendant pleaded the proviso in the statute, that this act shall not extend to sees to be taken within any city, &c. and prayed judgment, as it appears by the declaration, that the execution was levied in the city of Conventry.

Germyn for the defendant.

The sheriff ought to have only £. 4 6d. for the whole execution; inasmuch as at common law, he had no fee of common right, and he cannot maintain an action of contract for his fee, and he cited *52Batho and Salter's case; as the statute is introductio novi juris it ought to be taken strictly—and it may be expounded here both ways.

Crew, C. J. assented:

It is not inconvenient that he should have more fees for £. 100 than £. 199, inasmuch as when the sum is large, he shall be well paid, although he has only 1s. for every 20s. of the first £. 100.

Doderidge, J.

The statute admits of two constructions, therefore it is proper to inquire into its true meaning. The mischief was, that sheriffs used to be slack in doing executions, for there was much danger and no profit; as if the party escaped an action on the case laid against the sheriffs, besides the trouble of conveying and keeping him in prison. Therefore this statute was intended to constitute a medium between the oppression of the suitors and the avarice of the officers. And as the danger is greater where the sum is larger, it would be hard that the fee should be less.

Jones, J.

concurred. The statute gives rise to three questions.

1. The nature of the action. Whether debt lies ? and it is adjudged that it does. For when a sum is given by a statute and no remedy is pointed out, debt lies. Proby and Lunley’s case. Mo. 883.

*2. The words of the statute being: He that makes execution &c. shall have the fee: When the sheriff makes his warrant to the bailiff of a liberty who makes execution; and one of them makes the extent and the other the liberate, which of them shall have the fee?

3. With regard to the sum in question, I concur with Doderidge, for the reason he has given.

Whitlock, J.

So do I. In Lunley’s case, it was adjudged that the sheriff may refuse to do execution, until his fee be paid.

The question is here out of the proviso; whether it extends to executions done in cities on a writ out of this court; or only when a judgment is given there, and execution made on a warrant from this court.

Crew, C. J. Doderidge, Jones and Whitlock, Justices, agreed that in this case the sheriff is out of the proviso.

Doderidge, J.

said, when a bailiff in a city makes execution on a warrant, he has not so much trouble and care. But the sheriff’s labour is the same, when he makes execution there: therefore he is out of the proviso. When the *53city is a county of itself, if the sheriff of bailiff makes execution, perhaps he shall not have the fees limited in the statute.

Jones, J.

I agree to the main question. But I would make it a question, if an execution was to issue out of this court, to take a defendant in a city: and the sheriff makes a warrant to a bailiff there. Whether he is entitled to the fees in this statute? But if the town be a county of itself, on execution out of this court, he ought to have the fees.

Doderidge, J. and Whitlock, J. assented.—

And afterwards judgment was given for the plaintiff. Doderidge, J. Jones, J. and Whitlock, J. being of an opinion, and Crew, C. J. of another. Jones, J. cited a case. In 19 Jac. Empson vs. Bathrust, in the Common Bench on the same question, where the court was divided. But he was of the same opinion there as here, and it was adjudged that the sheriff cannot take a double obligation for his fee, inasmuch as the statute gives him his fee but no penalty. Antea, p. 17. Postea, p. 54. Palm. 397. 1 Bendl. 191. Poph. 173. Noy 75. Cr. 287. Vin. 20 and 50.