
    The Commonwealth against Johnson executrix of Johnson.
    
      Saturday, May 2.
    The Commonwealth is not liable for the sheriff’s fees for serving process in suits on forfeited recognisanees brought in the name of the Commonwealth.
    The accounting officers are not authorised to allow claims for such fees to be charged against monies received by the sheriff for the use of the Commonwealth.
    In Error.
    ERROR to the Court of Common Pleas of Dauphin ■* COUllty.
    The accounts of Francis Johnson, as sheriff of the city and county of Philadelphia, were settled by the auditor geJ r -, . ~ neral and state treasurer, on the 4th Aprils 1812, and the sum of 219 dollars 90 cents reported to be due from him to the Commonwealth. From this settlement, Francis Johnson appealed to the Court of Common Pleas of Dauphin county, agreeably to the provisions of the 11th section of the act of 30th March, 18H. Purd. Dig. 361. In the Court of Common Pleas a case was stated for the opinion of the Court, with liberty to either party to take out a writ of 5 J , 1 J 7 by which it was admitted, that the said Francis Johnson had in his hands money, received for the use of the wealth, to che amount reported due by him ; but he claimed a set-off to that amount lor the service of original process and executions issued out of the courts of the city and county of Philadelphia, in suits on forfeited recognisances at the instance of, and in the name of the Commonwealth; which services were admitted to have been performed, and that the fees therefor amounted to the above-mentioned sum of 219 dollars 90 cents. It was also admitted as testimony given in the cause by George Bryan, auditor general, that he does not know that any claim was ever made against the Commonwealth, prior to that of the defendant, by any sheriff, clerk of court, prosecuting attorney, or other person; and that no such claim was, to his knowledge, ever allowed by the accounting officers of the Commonwealth. The Court of Common Pleas gave judgment for the defendant.
    
      Ellmaker, for the plaintiff in error,
    stated, that there were two questions arising in this case. 1. Is the Commonwealth liable for sheriff’s fees, in suits on forfeited recognisances ? 2. If liable, can thev be used as a set-off?
    
      1. These suits on recognisances, are a part of the criminal proceedings, and the understanding and usage have been universal, that the Commonwealth is not liable. The evidence jyjr< Bryan, who has been auditor general for eleven years, shews this to be the case. In some of the counties, J . . as lor instance Dauphvn, the county has been accustomed to pay these costs ; in others, they have sometimes paid them and sometimes not; but in no instance has the Commonwealth paid them. General usage makes and repeals laws, and controuls contracts.
    2. The 1st, 7th, 8th, and 11th sections of the act of SQth March, 1811, shew, that there can be no set-off. The sheriff’s account for fees, falls within the 7th section, because there was no appropriation for the payment of it. After being settled by the accounting officers, they should have reported it to the legislature, who might pay it or not as they thought proper. The officers could not pay it. The accounts against a person for money of the Commonwealth received by him, and any account he may have against the Commonwealth for services performed* are distinct things. They are kept and settled separately. Act of 30th March, 1811, sections 26, 30. Act of December, 1783, section. 6. (Purd. Dig. 230.) As the constitution and laws now stand, no suit can be supported against the Commonwealth without an appropriation by law. Thus, on the 16th March, 1798, (4 Dall. Laws, 237,) an act was passed to authorise Edmund Milne to bring suit against the Commonwealth, directing the matters to be tried, and the mode of payment. On the 26th February, 1801, (ibid. 695,) an act of the same kind was passed as to William Turnbull. In the case of Timothy Matlack, who had been clerk of the senate, it was decided by the Supreme Court, that there can be no set-off against the Commonwealth, in a suit brought by the Commonwealth. This decision took place under laws much more favourable to such a claim of set-off, than those under which the defendant claims. Act of 13th April, 1782, section 2, (2 Dall. L. 45.) Act of 18th February, 1785, section 3, (3 Dall. L. 247.) Act of 4th Aprils 1792, section 1, (3 Dall. L. 218.) 3 Sm. L. 40, 41, 43. 4 Sm. L. 204.
    
      Elder, contra.
    1. The sheriff .was bound to serve the process, and is therefore entitled to his fees. The fee bill of 1794, gives fees for the service of process. The Commonwealth are as much bound to pay for the service of their process as individuals.
    2. The Commonwealth is only entitled to recover what is due in justice and equity, that is to say, the balance of the account.
    The Court stopped Mr. Hopkins in reply.
   The opinion of the Court was delivered by

Duncan J.

Francis Johnson, in his life-time, appealed from the settlement of his accounts, as sheriff, with the Commonwealth, by the auditor general and treasurer of the state, made on the 4th April, 1814, reporting a sum due to the the Commonwealth of 219 dollars 90 cents. On his death, his executrix was substituted.

It is not alleged, that there is any error in the settlement, so far as respects the amount of public monies in the hands of sheriff Johnson; but he retained this sum for fees ; 201 dollars for the service of original process, issued out of the Court of Common Pleas on forfeited recognisances, and 18 dollars 90 cents on fieri faciases on forfeited recognisances. These sums are now claimed by way of set-off. Strictly there can be no set-off against the Commonwealth. A set-off is in the nature of an action, and was introduced to prevent circuity of action. And as no action can be brought against the State, it necessarily follows, that there can be no set-off. The Commonwealth v. Matlack. Superadded to this, the accounting officers could not allow this claim, even had it been recognised by law, to be deducted, there being no appropriation. Their duty was of another kind, to settle and adjust the account as other claims are ; and it then became the duty of the auditor general to report the same to the legislature, if in session ; but if not in session, then during the first week of the ensuing session.

If the claim had been recognised by law, and there had been an appropriation to meet it, it would then have been the duty of the accounting officers to have settled and adjusted it, according to law and equity. Act of 30th March, 1811. In this case there would, if it had been allowed, be no balance in the hands of the sheriff, and the account would have been so settled. If the account had not been allowed, then the party, if dissatisfied with the decision, could have entered' his appeal. The doctrine of set-off has no relation to these settlements or appeals. The party has his remedy, but it is not by the medium of set-off.

A variety of claims on the public, by public officers, for fees, have, of late years, sprung up in different parts of the State. They have been in the form of actions against the commissioners of the county. They were made on the ground of compensatory fees, or on the pretence of usage and custom. These pretences are all swept away by the fee bill of 21st March, 1814, which forbids the Court to allow any officer, under any pretence' whatever, any fees under the denomination of compensatory fees. There are many onerous duties enjoined on public officers, particularly sheriffs, for which there may be no specific fee allowed by law. But these officers can have no just cause of complaint. For offices'here are not forced on any man. No man is obliged to accept them under penalty, as is the case with sheriffs in England; and even there, where the office is forced on the officer, the law is, that the sheriff’s being allowed no fees by the common law, his title to them must be by act of parliament. The sheriff and the courts are bound by the act, and there can be no extra allowance, not even for an auctioneer.

If it had been an usage for the State to pay these fees, another question would have been presented to the Court; but the testimony is, that the demand is now first made. This is not a circumstance of small weight. It affords the strongest evidence of the general understanding and universal opinion, that the State was not liable. We may be well assured, that these officers would not so long have remained dormant ; and if this demand is now to be sanctioned, a flood of claims, from every county in the State, by attornies, sheriffs, and prothonotaries, would rush in on the public treasury. This, however, would be no consideration, nor afford a just reason for rejecting the claim, if recognised by law. Before the revolution, the recognisance was to the king. The action on it, when forfeited, was in his name. There was no appropriation by any law of the province to pay the demand; ' nor would the proprietaries pay them out of their own estates, nor had'the king any exchequer here from which they could be drawn. It is evident, that a demand of fees for such ser» vice, from the first recognisance we take, until the claim is decided, never was made on the government, or if made, was always rejected. At common law, and before the statute of Gloucester, no person was entitled to any costs of suit, in any action, real, personal, or mixed. If the plaintiff failed, J 7 1 7 t i jjv he was amerced pro falso clamores ir he succeeded, the defendant was in misericordia. It is a certain principle, that the king neither pays nor receives costs in any case. 3 Bl. 400. And it became necessary to provide for the case of the king receiving them on a specialty, by a subsequent statute. For by stat. 33 Hen. 8. c. 39. sect. 54, it is enacted, that the king in all suits upon specialties to himself, or to any other for his use, shall recover his just debts, costs and damages. Hull. 21. Criminal actions, before the revolution, were prosecuted in the name of the king, who paid no costs. The Commonwealth stands in the place of the king, and therefore is not liable to costs, except where so directed by act of assembly. Irwin v. The Commissioners of Northumberland county, 1 Serg. & Rawle, 505.

An attempt was made by the executors of a late prothonotary of Cumberland county, to recover a large sum from the county for his fees on forfeited recognisances, and it was decided by this Court at Chambersburg, in October, 1818, that he' was not entitled, as no law had thrown this burden on the county. Lyon’s executors v. The Commissioners of Cumberland county. 4 Serg. & Rawle, 443. Yet it would seem, that where fees in conducting public prosecutions, were by law to be paid by the public; the county in which the offence was committed was made liable, and not ihe State. As in outlawries on indictments for capital crimes; unfounded charges before justices of the peace; bills re-. turned ignoramus by the grand jury. Act of 23d September, 1791. 3 Sm. Laws, 42. So by act of 17th December, 1804. 4 Sm. Laws, 204, to regulate costs on indictments, the grand and petit jury were empowered to decide, whether the county, defendant, or prosecutor, should pay the costs. I know but of one case in which the expenses and consequences of a public prosecution, are cast on the State; and that is in the case of the conviction and execution of a slave : there the Court make an order on the State treasury, payable to the owner, for his value, and for the costs of prosecution j but in case of remission, or mitigation, for costs only; Act of 1st March, 1780. 1 Sm. Laws 492. Before the act of 17th December, 1804, the defendant, when convicted or acquitted of the charge, was obliged to pay the costs: if acquitted, he was left to his remedy by action for malicious prosecution: if convicted, payment of costs formed part of the sentence. If acquitted, he was discharged, but still on payment of fees. Judge Yeates, in Irwin v. The Commissioners of Northumberland county, states a practice of some counties to discharge a prisoner confined for payment of costs, and draw for thejamount on the county treasury; and this from a principle of economy. It was better so to do, than increase the expenses by continuing the confinement, as the county was bound to support the prisoner, and that without any hopes of his being able to pay the costs. On the experience of Judge Yeates, we may rely with all confidence.

The only fee to be paid by the State on forfeited recognisances, to sheriffs, is by the act of 9th December, 1783, 2 Sm. Laws, 84; and that is, a commission of 2f per cent., for the trouble in collecting and paying into the treasury, all monies they may recover on forfeited recognisances.

The Court are of opinion, that this claim was properly rejected by the auditor general and state treasurer, because it was not a claim recognised by any law; nor the State liable for the fees on these actions on forfeited recognisances.

Judgment reversed, and judgment for the Commonwealth for the sum declared for, and interest from the time of settlement of Francis Johnson's account.  