51 A. 679 | N.H. | 1901
1. The fees allowed by the referee for the service of writs upon defendants and for copies were in accordance with the statute. P. S., c. 287, ss. 16, 26. In making service of writs and other process, the officer is required to make use of attested copies. P. S., c. 219, s. 2; Ib., c. 220, s. 3. It is implied that he shall make the attestation *140
himself, and such has been the uniform practice. He is a certifying officer within the meaning of section 26, chapter 287, of the Public Statutes, and is entitled to charge the fees thereby prescribed. McClure v. Locke,
2. The referee allowed for two certificates upon copies, and the court for only one. It is understood that one of the certificates related to the body of the writ, and the other to the filing and indorsement; and that it was the latter which the court disallowed. The attestations to the correctness of the copy of the body of the writ was required (P. S., c. 219, s. 2), and the charge for it is authorized by the statute. P. S., c. 287, s. 26. Original writs must be indorsed by the plaintiff if an inhabitant of the state; and if not, by some responsible person who is an inhabitant. P. S, c. 218, s. 8. The indorser is liable for the costs recovered by the defendant in the action. P. S, c. 218, s. 9. The indorsement is not a part of the writ, but is "in effect, a bond that the indorser will be responsible to the defendant in certain emergencies." Garvin v. Legery,
An attachment of real estate upon a writ of mesne process is made by the officer's leaving an attested copy of the writ, "and of his return of the attachment thereon," at the dwelling-house or office of the town clerk of the town in which the real estate is situate; or if there is no town clerk, with the clerk of the supreme court of the county. P. S., c. 220, s. 3. The officer is entitled to charge for two certificates in such cases — one the attestation of the copy of the writ, and the other the attestation of the copy of the return of attachment. See Foster v. Hadduck.
3. The plaintiff's charges of fifty cents for service in making attachments of real estate were properly disallowed (McClure v. Locke,
4. "The trustee writ shall be an attachment and summons, and shall be served upon the defendant and trustee like a writ of summons." P. S., c. 245, s. 3. The trustee action has a dual nature. Ingraham v. Olcock,
5. There was a special agreement between the parties by which the plaintiff was to be paid fees at specified rates for the service of writs, excepting certain ones upon which no collections were made, and was to be paid nothing for the service of the latter. The specified rates were, fifty cents for service upon each defendant and trustee, twelve cents a mile one way for travel to make service, fifty cents for each copy used in making the service of a police court writ and one dollar if a supreme court writ, without regard to the number of words in the copy. According to the plaintiff's testimony, the exception included only police *142 court writs which proved not to be the means of enforcing collections; while according to the defendant's testimony, it included all writs which proved unproductive of results. The extent of the exception is immaterial upon the question of the validity of the agreement. The material fact bearing upon this question is the proviso that no fees should be paid for the service of some writs if no collections were made thereby.
The agreement is for the service of each one of several writs for specified fees, — the obligation to pay the fees being conditional in some instances, — not an agreement for the service of a number of writs as a whole for a single, inseparable consideration. The promises of each party are several and distinct, and are supported by corresponding considerations. If, for example, in the execution of the agreement, twenty writs were delivered to the plaintiff for service, his promise was to serve the fifteenth writ, or any other one of the twenty, for the fees named, subject to the condition; and the defendant's promise was to pay accordingly for that particular service. Carleton v. Woods,
The fees agreed upon are the same as those fixed by the statute excepting the fees for copies of writs, which, in the case of police court writs, are a trifle less than statutory fees if the writs contain 560 words at least; and in the case of supreme court writs, are larger if the writs contain no more than 672 words. At the time the making of the agreement it could not be foreseen how many words the several writs to be served would contain; but it must be presumed that the plaintiff, being the sheriff of the county, and the defendant, being an attorney-at-law, had learned from their experience that the writs most frequently used, especially for collection purposes, did not contain a sufficient number of words to entitle an officer to one dollar for a copy, at the rate of seventeen cents for 224 words. The writs which the plaintiff served contained 560 to 672 words, and, including fee for certificate or certificates, would entitle him to charge fifty-nine or sixty-seven cents for each copy, instead of a dollar.
The statute provides that "if any person shall demand and take greater fee for any service than is allowed by law, or any fee to which he is not by law entitled, he shall forfeit fifty dollars for each offence to the person who will sue therefor." P. S., c. 287, s. 32. The imposition of the penalty implies a prohibition of the act punishable thereby. Roby v. West,
The custom of sheriffs to charge, and attorneys to pay, one dollar for the copy of a writ containing a less number of words than would justify the charge under the statute, however long and uniformly followed, would not repeal the statute. "An unlawful act cannot become lawful by usage." Shattuck v. Woods, 1 Pick. 171; Cutter v. Howe,
6. The statutes do not expressly prohibit sheriffs from making contracts by which the payment of their fees depends upon the contingency of success in the proceedings in which they are employed, but they do contain provisions which clearly recognize the existence of a public policy that conflicts with contracts of that kind. The nature and duties of the office of sheriff have tendency to prove the existence of such a policy. The sheriff is a public officer elected by the people. Const., pt. II, art. 70; P. S., c. 25, s. 1. It is his duty to serve in his county, by himself or his deputies, all writs and other precepts to him directed issuing from lawful authority, excepting writs in actions in which he is a party, or is related to one of the parties, or is interested. P. S., c. 212, ss. 3, 4. If he refuses or neglects to perform the duty, his fees therefor being first tendered, he makes himself liable to a penalty. Ib., s. 7. He must perform the duty faithfully, impartially, and with reasonable care and diligence. As has been stated, the compensation for his service is in most instances fixed by the statutes, which also render him liable to a penalty if he demands and takes greater compensation. Any person having occasion for his aid in the service of legal process may command it by a delivery of the process and a tender of the prescribed fees; no special agreement is needed.
Prior to 1867, the only thing that disqualified a sheriff from serving process was the fact that he was a party to the action. R. S., c. 179, s. 3. Under this statute it was held that a sheriff could not make legal service of a process either in favor of or against the town of which he was an inhabitant. State v. Walpole,
There is another provision having probative force in the same direction. "No sheriff or deputy sheriff, police officer, constable, or city marshal shall be suffered to appear in any court or before a justice as attorney for any party in a suit. Any writ, declaration, plea, complaint and warrant, or other process made by a sheriff, deputy sheriff, police officer, constable, or city marshal for another person, shall be void" P. S., c. 212, s. 20. The object of this statute was to prevent abuses likely to follow from uniting in the same person the offices of sheriff and attorney. Osgood v. Norris,
In Tool Co. v. Norris, 2 Wall. 45, 55, it is said: "Agreements for compensation contingent upon success suggest the use of sinister and corrupt means for the accomplishment of the end desired. The law meets the suggestion of evil, and strikes down the contract from its inception." If such agreements are not in all cases suggestive of a contemplated use of fraudulent means, they at least have a tendency to subject the persons whose compensation is involved in them to the influence of selfish motives, and so, in the case of public officers, have a tendency to lead or crowd them from the path of duty. If the payment of a sheriff's fees for the service of a writ is made dependent upon the success of the plaintiff in the action, the sheriff by such agreement acquires an interest in the action which differs from that of the plaintiff only in degree, and in some cases possibly not in that particular. The interest does not cease with the completion of the service of the writ, but continues and naturally prompts him subsequently to do whatever he may properly do, to say the least, to bring about a successful result. Generally, the defendant in the action would not be informed of the agreement, and would attribute all the acts of the sheriff to the performance of his official duty. The powers conferred upon sheriffs are liable to be used in such a manner as to cause oppression and extortion. To confine this evil to the smallest *146 practicable limit, the law removes from sheriffs all temptations to misuse their powers. It regards the office not as a means for obtaining all the business possible, but as a trust to be administered faithfully, impartially, and according to law, without the hope of any other reward than that fixed by the statutes. Trist v. Child, 21 Wall. 441, 450. The law does not encourage sheriffs or lawyers to multiply actions for their benefit; but, on the other hand, makes it their duty to allow parties to take their own course in bringing actions.
"There is neither a more wholesome nor a sounder rule of law than that which requires public officers to keep themselves in such a position as that nothing shall tempt them to swerve from the straight line of official duty." Stropes v. Commissioners,
7. If the agreement related only to the defendant's personal liability, it would not be affected in this way. Prior to the act of 1899 (Laws 1899, c. 20), an attorney was liable upon an implied promise for sheriff's fees if he delivered writs to a sheriff for service without giving notice that he would not be liable; and this, although he is regarded as the agent of a disclosed principal. Towle v. Hatch,
8. Some of the items of both the plaintiff's specification and the defendant's set-off undoubtedly relate to the service of writs other than police court writs not entered in court, for which the plaintiff is entitled to pay under the agreement without regard to the success of the actions, if his testimony is believed; and others relate to the service of police court writs not entered in court, for which he is not entitled to pay unless collections were made in the actions. In other words, according to the plaintiff's testimony the contingency as to payment has no relation to some of the items, and of course cannot affect the rights of the parties in respect to them, even if it is opposed to public policy. As to items of this nature, if any, in the defendant's set-off, his right to recover sums paid by him in excess of statutory fees depends solely upon the question whether the parties, by violating the provisions of section 32, chapter 287, Public Statutes, previously quoted, — the plaintiff by demanding and taking illegal fees, and the defendant by paying them, — are in pari delicto.
The statute imposes the penalty upon only one of the parties to the transaction — the one who demands and takes the fee; the person who pays the fee is not punishable. See State v. Rand,
The plaintiff says the payments were made under a mistake of law, and for this reason cannot be recovered back. It is a general rule that a person voluntarily paying money under such a mistake cannot recover it back, although he was under no legal obligation to make the payment. Strafford Savings Bank v. Church,
If the contract was as the plaintiff alleges, the defendant is entitled to an allowance upon his set-off of all sums therein specified which were demanded and taken from him by the plaintiff in excess of legal fees, *149
within six years prior to the date of the writ (Peterborough Savings Bank v. Hodgdon,
Upon the same supposition, the plaintiff is entitled to recover legal fees for the service of writs other than police court writs not entered in court. In the performance of his duties as a public officer he rendered services at the defendant's request, waiving the prepayment of his fees. Presumably, there was nothing illegal in the services themselves. The special agreement provided for the payment of legal fees in all cases save one, and in that provided for the payment of a larger sum. The defendant certainly cannot object because he is called upon to pay a less sum than he promised. As has been previously stated, it is the demanding and taking of illegal fees that is punishable — not the making of a contract to that end. There is nothing in the statutory provisions tending to show an intention on the part of the legislature to deprive an officer of his legal fees because he demanded a larger sum. The well-established rule that the injured party may recover only the excess of his payment over legal fees conclusively shows that the law regards the officer as entitled to the latter, notwithstanding his illegal act. If after the wrong has been done an officer may retain the portion of the money received by him which represents legal fees, a fortiori, he may recover legal fees before the wrong is consummated. The plaintiff, therefore, is entitled to recover legal fees for the service of all writs to which the condition in the special agreement does not apply. According to his testimony, this would be all writs excepting police court writs not entered in court; and according to the defendant's testimony it would be none, for the condition applied to all alike.
The effect of the condition upon the rights of the parties as to the items of both the plaintiff's specification and the defendant's set-off to which it applies remains to be considered. In what follows, the condition is treated as of the nature which conflicts with public policy. Neither party occupied a position in which he could compel or unduly influence the other to agree to a provision by which the sheriff should have no compensation unless the actions were productive of collections. Such an agreement could not have been made without the active and voluntary cooperation of both parties. Presumably, the defendant was as fully aware of its illegality as the plaintiff was. There is no view of the matter in which one of the parties can be regarded as more innocent than the other. They were in pari delicto. Consequently, the plaintiff is not entitled to recover upon the agreement for the service of writs to *150
which the contingency applied; neither can the defendant recover of the plaintiff any sums that he has paid for services of that nature. The law will leave both parties where it finds them. The exception to the general rule, by which the defendant is allowed to recover of the plaintiff sums paid to him in excess of legal fees when the illegality of the transaction arises solely from a violation of the statute, does not apply. The objectionable provision is prohibited by public policy, not for the purpose of protecting one of the parties to the contract against oppression and imposition by the other, but for the purpose of protecting parties against whom actions are brought, and insuring a faithful and impartial administration of justice. The public, as well as the parties to the contract, have an interest in the matter. It would not be "in furtherance of" the public interests to allow the party paying money under such circumstances to recover it or any portion of it back. Neither is the plaintiff entitled to recover, upon an implied promise, legal fees for services rendered under the objectionable provision. Butler v. Legro,
10. There is a further question in case the defendant has collected fees for the plaintiff and has not paid them over. Is the defendant liable to the plaintiff for the money so collected, as for money had and received to the plaintiff's use, upon an implied promise? Portsmouth Brewing Co. v. Mudge,
It is manifest that the rulings of the referee in regard to the special agreement were not in accordance with these views; and for this reason, as well as for the other reasons above stated, the judgment must be set aside and there must be a new trial.
Case discharged.
WALKER, J., did not sit: the others concurred.