Pierce v. Delesdernier , 17 Me. 431 ( 1840 )

The opinion of the Court was prepared by

Shepley J.

The sheriff was allowed fees by the statute of 1821 c. 105, for “levying executions.” And by statute of 1829, c. 445, “ for levying and collecting executions.” In this case the sheriff collected only four hundred dollars and the costs. And if he had made a return of his doings upon the execution, be could have returned only, that he had collected that sum, and the exe-' cution would have remained unsatisfied for the remainder; for he was not authorized to satisfy the execution, but to “ return the execution to be discharged.” It was indeed satisfied, but not by any collusion to deprive the sheriff of his fees, for he was informed at the time he received it, that an arrangement had been made for its discharge by the payment of that sum. Nor can it be justly said, that the whole amount was at the risk of the defendant, for if the plaintiff had failed to obtain the security required, and the defendant had neglected to arrest him, he would be liable to the creditor only for the injury actually sustained, and might prove the inability of the plaintiff to pay the whole debt.

The statute' provides, that the travel shall be computed “ by the usual way,” and it is not material whether the sheriff travelled a more or less distant way to suit his own convenience. In this case he will be entitled to fees for such travel, and on the amount collected, and to nothing more.

Exceptions sustainedj