
    Lambard & al. versus Rogers & al.
    
    
      Quaere, whether it be lawful, for an officer, to include dollarage in the penal sum of a bond, given by a debtor to relieve himself from arrest on execution?
    If not lawful, yet, if the officer do it under a belief that it is allowable, the bond is protected as a statute bond under R. S. ch. 148, sect. 43.
    Debt upon a poor debtor’s bond, given to obtain his release from arrest on execution. Among other fees, the officer charged §1,00 for travel from Augusta, without stating the distance : also §3,20 for dollarage, although he collected no part of the execution, except by taking the bond in suit. Those items made a part of the amount, which being doubled, constituted the penal sum of the bond. A default was entered, subject to the opinion of the court.
    Shepley, C. J. presided at the trial.
    
      Gilbert, for defendants. The law allows dollarage only on sums collected. Here the officer collected nothing. The case does not show that the unlawful charges were included by “ mistake, accident or misapprehension nor can a presumption to that effect be raised. The court will not take notice of the distance from Augusta. The obligation sued can therefore he valid, not as a statute bond, but only at the common law, and the defendant is entitled to be heard in damages.
    
      Tollman, for plaintiffs.
   Wells, J., orally.

The law, (R. S. ch. 151, § 4,) allows dollarage for levying and collecting executions. If, in this case, the officer might legally tax the dollarage, the bond is a statute bond. Tf he could not so tax, still if, in doing it, he believed it was allowable, it may weh be considered a misapprehension, coming within the protection of R. S. ch. 148, § 43. Either way, then, the bond is valid as a statute bond, and the plaintiffs are entitled to judgment, according to the 39th section of said chapter 148.  