
    Joseph Boswell versus Nathaniel B. Dingley.
    When a sheriff has arrested a debtor in execution, and committed him to prison, and the debtor afterwards takes the benefit of the poor prisoner’s act, the sheriff is entitled to demand and receive his fees of poundage and travel of the judgment creditor.
    Assumpsit, by a deputy sheriff, for services performed by him, at the defendant’s request, in arresting and committing two persons, upon executions issued in favor of the defendant.
    At the last June term in this county, the parties submitted the cause to the opinion of the Court, upon a statement of facts, in substance as follows: —
    The defendant, having recovered two several judgments in the Court of Common Pleas, for this county, against one James Stack-pole, and one Joseph Doe, in personal actions, sued out his writs oi execution upon those judgments, and delivered the same to the plaintiff, Boswell, then a deputy sheriff of this county, to be by him served according to the precepts thereof. The plaintiff, not being able to find any property whereon to levy said executions, arrested the said Stackpole and Doe, committed them to jail in Augusta, and duly returned the said executions. The said Stackjpole and Doe, after their commitment, took the benefit of the act for the relief of poor prisoners, committed by execution for *debt, and were discharged from their imprisonment, [*412] pursuant to the provisions thereof, and have never since paid any part of the said judgments, or of the fees arising upon their said commitment. The items of those fees are stated, and amongst them are certain charges for extra services, beyond the regular fees chargeable by law.
    Upon these facts, if the Court should be of opinion that the plaintiff is entitled to recover the sums demanded in this action, or any part thereof, judgment to be entered accordingly; otherwise," the plaintiff to become nonsuit, and the defendant to recover his costs.
    
      Rice, for the plaintiff,
    relied on the statute, establishing and regulating the fees of officers, [1795, c. 41;] and he contended that, when a sheriff has levied an execution upon the body of a debtor, he has completely fulfilled the. precept of the execution, and, in common justice, is entitled to his due and legal reward. Although the creditor may eventually derive no benefit from the service, the officer is responsible for the whole amount of the judgment, if he either neglects to arrest the judgment debtor, or, having arrested him, suffers him to escape out of his custody.
    
      Wilde, for the defendant,
    acknowledged that there seemed to be some appearance of hardship in compelling an officer to perform services for which he was legally entitled to no reward. But the same thing frequently occurs to sheriffs. When they have a warrant to arrest one charged with a crime, or to search for stolen goods, if they are unsuccessful in the search, or fail to find the criminal, they are entitled to no recompense for their services, however laborious they may have been. This seems to be an action of the first impression, which, of itself, furnishes a strong argument that it does not lie. The precept of the execution is, to take the debtor’s goods, and, for want thereof, his body, and detain it until he pays the money due by the judgment, with the costs of levying There is no reference, in any event, to the creditor for payment of those costs.
   The action stood continued for advisement; and now the opin ion of the Court was delivered by

* Parsons, C. J.

This is an action of assumpsit, brought [*413] by the plaintiff, a deputy sheriff, for his fees in serving two execu tians, issued at the suits of the defendant; and the cause comes before us on a case made by the parties.

It is agreed that the defendant, having sued out two executions, one against Stackpole, and the other against Doe, delivered them to the plaintiff to be executed; who, for want of goods, chattels, or lands, of the debtors, arrested their bodies, and committed them in execution, where they remained until discharged under the provisions of the poor debtor’s act.

It is said by the defendant that the plaintiff is not entitled to any fees; if he is, he cannot maintain an action against the defendant for them; and, if he can, he has demanded more or greater fees than by law he can claim.

Upon the first point, we are of opinion that the sheriff is entitled to his fees for poundage and travel in these cases; he took the bodies of the debtors as pledges for the payment of the executions; and he detained those pledges, at his own risk, against any escape.

On the second point, we are of opinion that he can maintain this action against the defendant for these fees. He could not demand payment before he performed the service ; and the service was performed for the defendant. Could the officer have found estate of the debtor, he ought to have levied his fees, and thus have indemnified the defendant; and, not finding estate, he took and held their bodies for the defendant’s use. As they were discharged by order of law, the officer may maintain an action for his fees, the authority to levy the fees being for the defendant’s benefit, and not to discharge him from satisfying the officer. — Vide Moor, 468.— Cro. Eliz. 654.—1 Salk. 209, 231. —1 Roll. 598, pi. 35.

On the construction of the English statutes, in actions on simple contracts and judgments for a debt certain, the plaintiff, and not the defendant, pays the expense of levying; but, if the judgment be foi a penalty, the plaintiff may levy his whole debt, independent of the charges of execution. In this state there is no distinction [ *414 ] of actions ; for, in all executions, *the expense of levying is a charge on the debtor in favor of the creditor.

As to the third point, the plaintiff must recover only the fees provided by law, the Court having no discretion to make him any allowance.

Judgment for the plaintiff.  