
    Shattuck versus Woods.
    An officer does not incur the penalty of St. 1795, c. 41, § 6, by taking fees on a writ of execution on which he makes no service.
    The penalty is incurred if he takes, as a compensation for extra trouble, greater fees for levying execution than are allowed by the statute.
    In an action on the statute, evidence of a usage to take such extra fees is inadmis sible.
    Where the plaintiff and defendant both file exceptions to the direction of the court below, according to St. 1817, c. 185, § 5, an entry of the action in this Court by one of them is sufficient. Semble. Note.
    
    This was an action of debt upon St. 1795, c. 41, brought to recover certain penalties incurred by the defendant as a deputy sheriff, for demanding and receiving illegal fees. The 6th section provides; “that if any person shall wilfully and corruptly demand and receive any greater fee or fees for any of the services aforesaid, than are by this act allowed and provided, he shall forfeit and pay the sum of thirty dollars for every offence.”
    
      The declaration contained two counts, each for a distinct forfeiture. Plea, the general issue.
    At the trial in the Circuit Court of Common Pleas, in June term 1821, before Minot J., the plaintiff, in support of the first count, proved, that a writ of execution for 267 dollars and 68 cents, which issued on a judgment recovered by one Dris- ■ coll against Thomas and James Bennett, was delivered to the defendant for service. The defendant, in his return, certified, that he bad presented the execution to the Bennetts for payment, but that they had declined making any payment, and that he returned it in no part satisfied. The plaintiff proved by James Bennett, that the defendant called on him (Bennett) once, and no more, and requested payment of the execution, and that no part of it was ever paid to him, but that an adjustment in regard to the whole amount was afterwards made by a new security ; that the defendant told Bennett he had a right to his fees, and must have them, and that Bennett signed a note, which was wholly for the fees claimed by the defendant on the execution, in which he promised to pay the defendant, or his order, 8 dollars and 67 cents, either in Indian corn at 75 cents per bushel, or in money, on demand, and the defendant at the same time gave him a receipt for the same sum as his fees on the execution ; and that before the commencement of this action, Bennett paid the amount of the note to one Johnson, to whom it had been negotiated, by allowing Johnson the same sum on account to the full value in money. The plaintiff also produced evidence tending to prove, that, about the time of the payment, Indian corn was worth from 66 to 75 cents per bushel.
    The defendant offered evidence tending to prove, that he had acted as an agent for procuring the creditor to allow further time for the payment of the execution, and for obtaining a settlement ; and it was admitted, that personal property had been-attached by the defendant upon the original writ to answer the judgment.
    . Upon these facts, the judge directed the jury, that Bennett had his option to pay the note in Indian corn at 75 cents per bushel, or in money, on demand, and that, if they believed the value of Indian corn was so much less than 75 cents per bush el, that, the amount in value which the defendant could lawfully obtain by force of the note would not exceed the fees to which he was lawfully entitled by force of the execution, then their verdict should be for the defendant; otherwise, for the plaintiff. The judge also stated the percentage to which officers are entitled by law for collecting money on writs of execution.
    The jury having returned a verdict for the defendant on thajirst count, the plaintiff filed his exceptions to the direction of the judge.
    Peabody, for the plaintiff.
    It is admitted by the case, that 8 dollars and 67 cents exceeded the legal fees. Bennett could not tender the amount of the note until it was demanded, and the defendant would not demand payment, except when Indian corn was worth 75 cents per bushel; but in fact the note was paid in money. The case differs from Commonwealth v. Cony, 2 Mass. Rep. 524, for there the money was not received, but only demanded by the officer, and the note given might be avoided.
    Hoar, on the other side,
    said it was the intention of the defendant to take the fees for poundage and travel; the note it appears was given for a few cents more ; but Bennett had a right to pay either in Indian corn, or money. Such a note would not be usurious, although one side of the alternative might go beyond the legal interest. We rely on the case of Commonwealth v. Cony. It does not appear here what sum has been received by the defendant. The question as to the value of Indian corn was submitted to the jury, and it does not appear how much it was worth.
    If any of the facts in the bill of exceptions show that the plaintiff has no cause of action, the Court will not grant him a new trial. According to Dunlap v. Curtis, 10 Mass. Rep. 211, the party must have a right to demand some fees, in order to incur the penalty of this statute, and the excess demanded and taken constitutes the extortion. The bill of exceptions states a negotiation between Driscoll and Bennett for delay of payment. The defendant acted as an agent, and the suit was settled by a new security. The defendant then was entitled to the excess, and he received it as a compensation for his agency, and not as fees, for no fees are pror'ded for such services. The statute, therefore, does not apply to the present case.
    Webster, in reply.
    Upon a bill of exceptions no'question can be argued, except whether the opinion of the judge was or was not correct ; and the reason is, because the whole case is not presented before the court. St. 1817, c. 185, § 5 [Hoar. In Dunlap v. Curtis, the Court affirm the judgment expressly upon a different ground from that taken by the judge at the trial.] It does not appear whether the exceptions there were filed according to the statute, or whether it was a proceeding at common law. The statute provision was intended for a writ of error ; and may be called the Massachusetts, or New England writ of error. If that case was determined upon the statute, it is apprehended that the decision was not correct
    The proper direction in the present case would have been, that, as the note was paid in money, the defendant received more than was due to him. Bennett allowed Johnson the value in money. The note being delivered to Johnson, it would be strange if. the plaintiff should be called upon to prove that the defendant did not negotiate it for less than the face of it. The defendant’s receipt estops him from going into a consideration of the value of the amount received.
   The opinion of the Court was read at March term, 1823, as prepared by

Parker, C. J.

The count in the declaration, on which the verdict was returned, which is now attempted to be set aside, describes the offence to be in wilfully and corruptly having demanded and received more than the lawful fees for the service of the execution therein described. It is necessary, to maintain the action, that such an offence as is prohibited by the statute and set forth in the declaration should be proved, viz. that more than the fees prescribed were taken for the service of the execution mentioned in the declaration ; if no execution was served, or the fees were taken for the service of a different one from that set forth, the plaintiff should fail. The defendant might be guilty of extortion, for demanding and receiving fees which were not due to him, for which he might be punished by indictment at common law, and he might be liable to refund by a civil action against him ; but the penalty of this statute cannot be exacted, unless he has performed some official service for which a fee is provided by the statute, and has demanded a greater fee than that provided for such service.

From the facts stated in the exceptions filed in the court below, it does not appear that the defendant made any service of the execution, or that he was entitled to any compensation from the judgment debtor. He called upon him with the execution, and told him he must pay it, but he did not take the person of the debtor or any of his property. He returned the execution in no part satisfied, stating that he had presented it to the two debtors, and that they declined paying it; and the debt was satisfied or secured in another way, no part of the money having been paid to the defendant. Now this is a case where the officer was entitled to no fee at all, for he had done no service. He however exacted fees, as though the money had been raised upon the execution. This was an act of common extortion, for which he is otherwise punishable, but not by virtue of the statute upon which this action is brought. The verdict is therefore right, although it does not appear that the . case presented itself in this view to the Court of Common Pleas. It seems, on the trial, to have been taken for granted, that the defendant was entitled to fees for serving the execution, and the whole question made was whether he had taken too much ; and this was made to depend upon the value of corn, in which, or in money, the note taken for the fees was payable. We see no objection to the direction of the court on that point, unless the receipt of the defendant for 8 dollars and 67 cents should preclude him from denying that he had re ceited that sum ; but as it is clear that he was entitled to no fee, the case does not come within the statute, so- that a new trial would be useless, if one should be granted on the point made by the court.

Where an officer receives an execution which he does not execute, he is entitled to no compensation under the statute. If he returns it unsatisfied, by consent of the creditor, and has incurred any expense, he must look to the creditor for his • recompense; if without his consent, he has no claim upon any one" fees are for service, and then they are to come out of the debtor, but the debtor cannot be charged unless his person or property is taken, or unless he pays the officer upoi the execution. If, after the officer shall have begun to levy his execution, the debtor should surreptitiously, or by conniving with, the creditor to deprive the officer of his fees, pay the debt, or otherwise obtain his discharge, the officer may have a remedy against one or the other of these, according to the circumstances.

In the second count, the plaintiff alleged, that the defendant demanded and received, as and for his fees, on an execution in favor of John Munroe against George Munroe, the sum of 13 dollars and 67 cents, which was alleged to be excessive The defendant admitted his taking this sum as fees on the execution, and attempted to show his right so to do. He proved that personal property to the amount of the execution was taken by him and sold to satisfy the same ; that it was sold in twenty different lots ; and that he employed a person to act as his clerk at the sale, to whom he paid one dollar. He claimed a right to retain a sum less than one per cent, on the amount of the execution, for his services in advertising and selling the property. These sums, together with the fees mentioned in the statute; would amount to the sum taken by him as his fees; and he offered to prove, that it had long been the usual practice in the Commonwealth for officers to charge and receive such compensation for the sale of property on execution. The judge rejected this evidence, and instructed the jury, that the defend ant had no right to demand or receive any thing more, as a compensation for his services and travel, than the fees mention ed in the statute. The jury returned a verdict on this count for the plaintiff, and the defendant excepted to the rejection of the evidence of usage, and to the instructions to the jury.

Hoar. The question is, whether an officer attaching property, keeping it, and selling it by auction, may receive a reasonable compensation for services and expenses not provided for in the statute, without incurring a penalty. The case of Commonwealth v. Shed, 1 Mass. Rep. 227, in which evidence of usage was admitted, was upon an indictment, but it is applicable to an action on a penal statute, and is decisive of this case. Where an attachment of goods or cattle is made, the officer can charge only the legal fee for the service of the original writ. His compensation for keeping and selling them must be obtained upon the execution, and it is reasonable to allow him such an extra charge. In Caldwell v. Eaton, 5 Mass. Rep. 402, it is said, that the debtor must be at the expense of keeping the go'Ms and of the sale.

Peabody. The provision respecting the levy of executions in St. 29 Eliz. c. 4, is analogous to that in our own, and in England it is settled, that officers must confine themselves to the fees allowed by the statute. Woodgate v. Knatchbull, 2 D. & E. 148, 157. If an auctioneer were necessary, perhaps in Massachusetts the officer might pay him, and charge for the expense ; but he cannot charge extra fees for his own services. Evidence of usage was inadmissible ; otherwise the statute would be nugatory.

Parker C. J.

It appearing, in this part of the case, that the defendant demanded and received a sum over and above the stated fees for levying and returning the execution, the question is, whether he has made out a legal right to such excess. He claims to have received it as and for a compensation for his trouble in selling the goods which were taken on execution. The law gives no such compensation, but limits the officer to a fee for levying, to poundage, as it has been usually called, and a fee for travel in returning the execution. If this is an inadequate compensation in some cases, it is a liberal one in others ; and it was thought, that, upon the whole, it would afford a sufficient reward. All actual expenses necessarily incurred are a charge upon the goods, such as expenses for storing them, perhaps for taking an account of them and removing them, if that should be necessary ; but the officer can receive nothing for extra trouble, his compensation being pro-'ided for by the fee bill.

As to the practice of other officers on like subjects, we cannot think it is legal evidence to protect the defendant against the charge in the declaration. An unlawful act cannot become lawful by usage ; and it cannot be known whether the defendant may not himself have contributed to establish the practice under which he would defend himself. Lincoln v. Shaw, 17 Mass. Rep. 410.

Judgment on both counts affirmed. 
      
      
        Runnels v Fletcher, 15 Mass. R. 526. See Commonwealth v. Bagley, 7 Pick. 279.
     
      
      
        Peabody objected, that the party making these exceptions had not entered the action in this Court, as required by St. 1817, c. 185, § 5, but Hoar said the r Court had decided that an entry made by one of the parties filing exceptions was sufficient, and Peabody gave up his objection. — Jieporter. [See S. C, 3 Pick 207.]
     