
    ISBEL vs. SHACKLEFORD.
    June 3.
    A constable not justified in making distress clerk’s fees for services performed in the same year.
    
      From the Warren Circuit Court.
    
   Opinion of the Court, by

Judge Owsley.

THIS was an action of trespass, prosecuted against Shackleford, in the Warren circuit court. On the trial Shackleford justified, under a distress made by him as constable of Warren county, in virtue of a fee-bill which issued from the clerk of said county, for services performed between April and October in the year 1807, The distress was proved to have been made in December 1807; and the court instructed the jury, that Shackleford, as constable, had a right to make the distress at that time, under the fee-bill. A verdict and judgment were obtained against Isbel, from which he has prosecuted this writ of error.

Whether the fee-bill justified the distress, is the only question in this cause. The decision of that question depends upon the construction which should be given the 25th section of the act of 1796, reducing into one the several acts concerning sheriffs. By that section it is provided, that the clerks of every court, respectively, shall annually, before the first day of March, deliver or cause to be delivered to the sheriff of every county in this commonwealth, respectively, their account of fees due, &c. and the said sheriffs are hereby required and empowered to receive such accounts, and to collect, levy and receive the several sums of money therein charged, of the persons chargeable therewith; and if such person or persons, after the said fees shall be demanded, shall refuse or delay to pay the same, until after the tenth day of April in any year, the sheriff, &c. shall have full power, and is hereby required to make full distress, &c.

It is evident, from this section, the officer to whom fee-bills are delivered, has no authority to distrain, until after the tenth day of April succeeding the receipt of such bills. The services for which the fee-bill issued, under which Shackleford justified the distress in this cause, were performed by the clerk between April and October, 1807. It must, therefore, have been delivered to the constable after the services therein contained were performed. Distress, then, could not regularly have been made under it, until after the tenth of April 1808. The constable, therefore, could not justify the trespass committed in December 1807, under the fee-bill.

The instruction of the court was erroneous. The judgment must be reversed with costs, and the cause remanded, for a new trial to be had in that court.  