Spence v. Thompson, 11 Ala. 746

Spence v. Thompson

11 Ala. 746 | Ala. | 1847

GOLDTHWAITE, J.

1. The question on the general demurrer is, whether the counts for the statute penalties are properly joined with the count for money had and received. The theory of joining different counts in the same declaration is, that they describe different causes of action — the practice is to multiply the counts, to avoid the consequences of failing upon a single statement of the cause of action, when upon some part of the entire case the plaintiff is entitled to relief. Pursuing the inquiry then, as if this plaintiff had distinct causes of action, the one by contract and the other by the statute, there seems no sufficient reason why he should not embrace them by one suit, if they can be classed in the same form of action. It has been held that debt for an amercement in a court leet, and on a mutuatis may be joined. [Bedford v. Alcock, 1 Wils. 248.] The rule is said to be, that when the same plea may be pleaded, and the same judgment must be, the counts maybe joined, (2 Saund. 117c.) though the identity of the plea certainly does not constitute the test, as this would prevent the joinder of a count on a bill single, and one on a judgment or simple contract. Taking the rule however as stated, it covers this case, and the joining the counts is no error.

2. The objections to the counts on the statute resolve themselves into two — that the action of debt is not warranted by the act — and that the counts are not sufficiently specific if that action is proper. We shall examine each in its 'order. The statute provides that if any officer “shall des-man d and receive any other or higher fees” than prescribed, *750“ he shall be liable in damages to the party aggrieved for four fold the fees so unlawfully demanded and received, to be recovered before any court of competent jurisdiction.” [Dig. 238, § 9.] It is supposed the terms “in damages” indicate the legislative will that the action to recover the penalty shall be case instead of debt. The entire force of the term, as indicating the action on the case is lost, when the nature of the penalty is considered. It is as fixed and definite as terms can make it, and there is no discretion as to the sum to be recovered. This must be four fold the fees illegally demanded and received; hence it appears there is no reason growing out of the terms, which require an action on the case instead of debt. It is said in 6 Bacon’s Ab. 392, that if a penalty be given, but no action for the recovery, an action for debt will lie. This seems to furnish the general rule, and as there is nothing of sufficient force to indicate that another form of action was intended, that of debt seems entirely in accordance with principle.

3. The exception to the substance of the first thre.e counts cannot prevail. The object of pleading is to advise the party tvhat he is required to answer, and when; if this is sufficiently done, and a legal cause of action is exhibited, a declaration is good. Here, the counts substantially pursue the terms of the statute, as the defendant is charged with illegally demanding and receiving for fees higher and other recompense than that allowed by law, as well as specifjring the aggregate sum so illegally received. This would be sufficient in an action for extortion, as the statement of the sum taken renders the allegation certain and specific. [Davy v. Baker, 4 Burr. 2471.] This statement of the sum taken seems necessary, in addition to the statutory definition of the offence, but is unnecessary to be proved precisely as alledged, as any sum illegally taken will sustain the count. [King v. Gillham, 6 Term, 265; Rex v. Burdett, 1 Ld. Raym. 149; 3 Chit. C. L. 293 n. w.]

4. The fact that a portion of the illegal fees were demanded on account of the former sheriff, and paid to him after their receipt by the defendant, is no defence to the action. The sheriff has no authority, without the mandate of the court, to collect fees due to a preceding sheriff; even if such fees are *751legally due but not taxed, and certainly cannot be permitted to avoid the consequences of an illegal exaction by showing it was made for the benefit of another.

5. The refusal to give the 2d and 4th charges requested was proper for the reason previously stated, to wit, that although some sum is essential to be stated as illegally taken, under color of office, to give certainty to the indictment, yet it is not necessary to prove the sum precisely as laid. Proof that higher fees were received than the law allows, is equivalent to proof that other fees than the law allows were taken.

6. The return of the sheriff that he had taken slaves in execution, is no proof that they were kept by him for any specific time. It is unimportant here to say, what would be the force of a return stating the slaves had been kept, as that is not in the return in evidence. Neither is it necessary to enter on the question whether any fees can be collected on an alias execution, other than those taxed, or as commissions for executing it.

7. There is no pretence to say, that when money has been illegally exacted, the sufferer is required to make a demand before suing for money had and received.

8. The circumstance that the verdict of the jury is in damages instead of finding the sum as a debt, is one of no importance, according to our course of practice. [Malone v. Hathaway, 3 Stewart, 29; Sandford v. Richardson, 1 Ala. Rep. 182; Carrol v. Meeks, 3 Porter, 226.] If the verdict was for more than was proper, a motion for a new trial was the mode to correct the error.' [Moore v. Coolidge, 1 Porter, 280.]

On the wfyole we can ascertain no error in the record.

Judgment' affirmed.