13 Conn. 1 | Conn. | 1838
The levy of the execution, which was the evidence of the plaintiff’s title, is claimed to be void, on two grounds: that it embraces charges made by the officer, not authorized by law ; and that the conduct of the plaintiff, in stating to the appraisers that they had appraised one of the parcels of land, as he thought, too high, and requesting them to
1. Was the levy void, by reason of the illegal charges embraced in it 1 The exceptions are to the charge for refreshments, 1 dollar, 25 cents ; and to the general statement of the expenses paid — to the appraisers, 12 dollars ; surveyor, 4 dollars 31 cents; and chain-men, 2 dollars, 1 cent. It is supposed, in relation to the latter charges, that as the statute prescribes a per diem compensation for these services, the officer’s return should specify the precise time those persons were necessarily-employed, that it may appear no greater sums were allowed them, than those authorized bylaw. We think this exception ought not to prevail. There is no statute which requires a detailed statement of these expenses, to the extent claimed by the defendant; and without proof, we ought not to presume that they exceeded the amount allowed by law.
The exception to the item for refreshments, is based upon the decision of this court, in the case of Beach & al. v. Walker, 6 Conn. Rep. 191., in which it was held, by a majority of the court, that if by reason of unlawful charges, too much land is taken and set off to the creditor, the proceeding, being an entire and indivisible act, is wholly void. We do not find it necessary, in this case, to review that decision upon this point. If it were, we might say it was received with much surprise, not to say dissatisfaction, by the profession at large; and before we give it the force of authority, we should feel it to be our duty, carefully to examine the reasons by which it is attempted to be supported, and to enquire whether there is any legal or equitable principle to sustain it. In the case of Burnham v. Aiken & al. 6 N. H. Rep. 306., a contrary doctrine is estab
It would seem to be difficult to maintain the position, that this levy is void, in face of the clear and explicit provisions of the statute of 1828. The ingenuity of counsel, however, has been exerted, to establish a distinction between the charges of an officer, which are not for his personal services, and are, therefore, supposed not to be included in the term fees, and such as are strictly and technically fees, being the remuneration which the law gives him for his own services : and it is insisted, that a levy including any charges not authorized by law, and not technically fees — the reward of his individual services, is not embraced by the confirming act of 1828. We cannot yield our assent to this proposition. The refined distinction urged upon us, would force us to give a construction to the statute unnecessary to a due protection of the rights of the debtor, subversive of its spirit, and at variance with its terms, ineffectual to afford a complete remedy for the mischief it was designed to obviate, opposed to the analogies of our law, and the decisions of this court, and unsupported by principle or authority. The statute under consideration, is highly remedial, and should receive a liberal interpretation in aid of the remedy it was intended to furnish. Atcheson v. Everett, Cowp. 382. Middleton v. Forbes, Willes 259, note. Coffin v. Cottle, 16 Pick. 383. Jackson v. Bulloch, 12 Conn. Rep. 38. And it has been said, that in the case of a remedial statute, every thing is to be done in advancement of the remedy, that can be done consistently with any construction that can be put upon it. Johnes v. Johnes, 3 Dow, 15. It has also been said, that it is not unusual in construing a remedial statute, to extend the enacting words beyond their natural import and effect, in order to include cases within the mischief, and also within the apparent intention of the legislature. Dean and Chapter of St. Peters v. Middleborough, 2 Y. & I. 196. These are strong expressions, and perhaps not entirely in harmony with the opinions declared by other judges, who have manifested an inclination to adhere more closely, in the construction of statutes, to the words of the act. Rex v. Everden, 9 East 101. per LeBlanc, J. Brandling v. Barrington, 6 B. & C. 475. Jones v. Smart, 1 Term Rep. 44. 51. per Ashhurst, J. The present case, however, requires only the application of a rule which all the decisions sustain,
The case of Beach v. Walker, had been decided at the circuit, in December 1825, and while it was pending in this court, upon a motion for a new trial, the act of 1826 was passed, which was intended to reach that case, as well as all other levies of a like character. It was considered eminently just, to protect the levying creditor against the ruinous consequences which would follow from a general application of the rule established in Beach v. Walker. It surely never could have been contemplated by the legislature, that a levy including illegal fees, (if such an expression be not a solecism) should be made valid, by the act, while levies containing unlawful charges should be excluded from its benign operation. The same reason existed to protect the levies, in both cases; the same injustice would be done to the creditors, in both ; and the same ruinous consequences would ensue in both, if the proceedings were not upheld. Indeed, it is probable much the greatest proportion of levies supposed to be invalid, by reason of unlawful fees or charges, were those in which the officer’s fees for his own services were not greater than the law allowed, but which included other charges, not authorized by the statute. It is therefore fairly to be inferred, that the design of the legislature was to protect all levies, where no other objection existed, than that they included items for services and disbursements not expressly sanctioned by law, and which were specified in the officer’s return, under the general denomination of fees. Such a construction of the statute is in accordance with its general object and spirit, and well Calculated to advance the remedy, and avoid an evil which would otherwise be intolerable.
The words of the statute, also, lead to the same just conclusion. The expression used is “ other and greater fees.” If the word fees includes, as the defendant supposes, no other than the fees of the officer, it is not easy to discover why the word “ other” was used at all in the statute. The expression “ greater fees,” would have embraced all upon which the act was designed to operate. It is not a correct use of language
2. Is the second instruction liable to any just exception 1 It would be a sufficient answer to this inquiry, to say that it is in precise conformity to that given in the ease of Bill v. Pratt, 5 Conn. Rep. 123., and which received the sanction of this court. In that case, after an appraisal had been made, and a certificate had been signed by the appraisers and delivered to the creditor, the appraisers, at the request of the creditor, and without the knowledge of the debtor, again viewed the land, and appraised the requisite quantity, having different boundaries, and at a less price per acre than their first appraisal. The court instructed the jury, that the second appraisal was not of course void, and left it to them to say, whether there was any fraud on the part of the plaintiff, or fraud or corruption on the part of the appraisers, affecting the appraisal; and they having negated all fraud and corruption, it was held, that the instruction was right, and a new trial was refused. It is impossible to distinguish that case from the present, in point of principle j and it should govern our decision in the case before us, unless it be overruled. We see no reason to change the opinion there expressed. On the contrary, a careful examination of the reasons on which it is founded, have confirmed our views of its correctness.
The objection now made by the defendant, if it should prevail, would avoid every levy, where it should appear, that the creditor had spoken to the appraisers, in the absence of the debtor, in relation to the duty they were appointed to discharge, before they had performed it. We know of no rule of law, or principle of public policy, which speaks in such terms of denunciation, and visits with such consequences, the well meant expressions of an honest creditor, and the bona fide conduct of impartial appraisers. The debtor is abundantly secure in the protection which an upright court and jury will afford him,
New trial not to be granted.