#### * Walden vs. Vessey.

Pasch. 2 Car.

IN debt, on the statute of 29 El. 4. the words of which are “upon extents and executions, the sheriff shall take 12d. of and for every 2os. where the same exceeds not £. 100, and 6d. of and for every 2os. being over and above the said sum of £. 100. Provided, that this act shall not extend to any fees to be taken for any execution, to be had within any city on town corporate." The execution in this case was for £. 180, and the question was, whether the sheriff shall have only 6d. for every pound, when it exceeds £. 100, or 12d. in the pound for £. 100, and 6d. for each pound over.

Whitwick

argued, that in this case, the sheriff shall have 12d. for £. 100, and 6d. for the £. 80: Because the greater the sum is, the greater is the sheriff's labour. Therefore it is not reasonable that his wages should be less for £. 180 than for £. 100; and it was so adjudged in Proby and Runley’s case. Pasch. 14 Jac. rot. 531, on an execution of £. 400, £. 12 were demanded, viz. £. 5 for the first £. 100, and 6d. afterwards. And there was judgment pro quœrente.

The second point in this case was this. The proviso says that these fees shall not be taken for every execution, had in any town corporate. And the sheriff of the county, in this case, entered a corporation and did execution, the question now was, whether he should have the fees, or be out of the proviso?

And Whitwick argued, that he should have the fee, not withstanding the proviso. First, because no man will say, that if he had taken the prisoner near the walls of the town, he should not have had the fee, and why should he not have it for having taken him in the town. It is clear that the words of the proviso are to be understood of judgments given in the corporation. There, it is not reasonable that *18the sheriff or bailiff should have the same fees for taking a prisoner, who perhaps lives in the next house, as the sheriff, who perhaps will have many miles to travel after him. No doubt if a foreign sheriff was to have no fees for executions done in corporations, two great inconveniences would follow. First, the sheriff having no fee, would be tardy and flow in doing executions in corporations, and hence, justice and the execution of justice, which is much favoured in the law, would be delayed. Secondly, corporations would become the refuge and asylum of persons in debt; and for these reasons he prayed *judgment pro quærente.

Jermyn, contra,

said, that if execution be for above £. 100, then he shall have only 6d. in the pound: Because, first, this statute ought to be taken strictly, being in the negative. No fees shall be taken, &c. according to the rule laid down in 3 Rep. Heydon’s case. And he said, that the sheriff at common law, ought to do his office freely, without a fee. He remembered that it had been lately adjudged so in Salter’s case. One came to the sheriff with an execution against I. S. and told him: In consideration, that you shall take I. S. I promise you so much; to wit, a greater sum by much, than the statute allowed him for his fee. The sheriff took I. S. and sued the other upon the promise. But it was held that the action does not lie, because there is no consideration. For the service of the execution was no consideration, inasmuch as by the common law, he ought to do it freely without a fee. He argued that if the sheriff, at common law, ought to execute his office without a fee, it is reasonable to construe the statute for the least reward. With regard to Proby’s case, cited by the defendant, he said the question there was simply, whether the sheriff should have an action of debt for his fee allowed by that statute? It being doubted that he could not, as he might have had his fee, before he had performed his duty. But it was adjudged that an action of debt lies for his fee, on account of the words in the statute, which limit such a fee to be had, received or taken. With regard to the second point, he insisted only on the words of the proviso, and prayed judgment for the defendant.

Doderidge, J.

The common law gave no fee to sheriffs. Consequently they were tardy and flow in executing writs, on account of the danger. For there was danger in arresting desperate fellows, who often made resistance: and there was also some danger in detaining them, for fear *19of escapes. The sheriffs were backward, demanded great, reward, or refused to act. Parliament thought it proper to stint their fees in the manner expressed in this statute. The question, now before us, is how it shall be expounded, and it seems to me in the manner Whitwick has explained it. For otherwise the sheriff shall have only £. 5 for an execution of £. 200 and £. 5 for one of £. 100, and for an execution of £. 180 he shall have less than for one of £. 100, which would be hard. With regard to the second question, I hold that the proviso extends only to judgments in suits commenced in the corporation, inasmuch as the execution then is easy. But, if a foreign sheriff comes into the corporation to levy an execution, it is not reasonable he should be excluded of his fee, as he has the same pains, labour and trouble, in this, as in other cases.

Jones, J.

concurred. He said: Three questions rise on this statute: 1. Whether debt lies for the sheriff’s fee? and it has been determined that it does: inasmuch that when a statute does not express what remedy one shall have for a fee or forfeiture, &c. an action of debt lies.

2. Whether (when a sheriff makes a covenant to the bailiff of a liberty to levy an execution) the sheriff or the bailiff shall have the fee? Also, when a sheriff makes an extent and another makes a liberate, which of them shall have the fee, or shall be said to have made execution ?

3. The question in the present case. It was argued also in the Common Bench. I have a note of it: but do not recollect their decision, for the present.

With regard to the second point, he said it made a very great difference, whether the corporation be a county of itself, or not. Because, when the corporation is a county, there the sheriff is an officer of this court, and shall be charged with the prisoners here at Westminster, Therefore as his charge and his risk are equal to those of the other sheriffs, it is but reasonable he should have the same fees. But the bailiff of a corporation, which is not a county, has neither the same trouble nor the same danger.

The Judges not being prepared for a solemn argument, the case was adjourned.

For example. If I deliver a writ to the sheriff to arrest I. S. and afterwards I forbid him to arrest him, and I desire him to return the writ, and he arrests I. S. quære whether I. S. may have false imprisonment? It seems not. Secondly, quære, whether I may have an action on the case against the sheriff or no? and it seems I may. For, *20perhaps I may be prejudiced. Thirdly, quære, whether the sheriff shall have an action on the case against me for his fees? Postea, Walden and Gerner, vs. Ursy and Ursy, p. 51. Bendl. 191, Palmer 399. Noy 75. Poph. 173. 2 Cr. 287. Proby and Limbey, mo. 853.