Hill v. Mowry , 7 R.I. 167 ( 1862 )

Brayton, J.

The plaintiff in this case claims to recover for his services rendered in making certain chemical analyses, by order of the coroner, at an inquest upon the body of Tyler Mowry, the defendant’s testator. The case is submitted upon a statement of facts, and under the agreement, that if the court shall be of opinion that the plaintiff can, upon this state of facts, maintain his action, that judgment shall be rendered for him for the sum of $110. The facts are agreed; and so far as they affect the right of recovery by the plaintiff, are, substantially, these : — that at a coroner’s inquest, duly holden upon the body of Tyler Mowry, the defendant’s testator, by Daniel Pearce, Esquire, a coroner duly authorized, a chemical analysis was ordered by him to be made by the plaintiff, for the purposes of the inquest, which analysis was made and duly reported to the said coroner and the jury. The plaintiff’s bill of charges for making said analysis was allowed by said coroner, and by him exhibited to the executrix, against the estate of said Tyler Mowry, and payment of the same was by her refused before the commencement of this suit; and that there is, in the hands of said executrix, assets sufficient for the payment of all the debts and liabilities of the testator.

One objection made to a recovery in this case is, that the statute prescribes and requires that suits for the recovery of the fees and expenses of coroner’s inquests shall be brought and prosecuted by the coroner, who is to represent the lawful claims of all persons concerned in the inquisition, and does not contemplate a suit against the estate o'f the deceased by any one or more of those entitled to the fees prescribed. It is by force of the provisions of Ch. 333, of the statutes, in amendment of section 5, Ch. 230, of the Eevised Statutes, that expenses of the kind here claimed are recoverable at all. The second section of the amendatory act, first providing that the town councils shall allow the reasonable expenses of this kind, declares, that the fees and expenses thus provided for shall be allowed and paid in the manner as by said 5th section is directed. The directions of that section are, that all the fees and expenses of the inquest, to be paid as part of the funeral charges out of the estate of the deceased, are to be exhibited against the estate b'y the coroner; not his own fees merely, but all the expenses of the inquest, — and enforced by legal process, if need be; which can mean nothing more nor less than that he should prosecute a suit, if need be, for the entire expenses of the inquest. We think this, is sufficiently clear from this section,-if it were now a new provision. It is not new, however. Provisions made in terms somewhat more express than the language here used, but the same substantially, were contained in the Digest of 1798, p. 399, — that “ when the deceased shall have effects in the hands of any person,” the coroner might demand “ the whole amount of the lawful fees attending the inquisition and upon his neglect to pay, “ such coroner may sue such person for the sameand upon recovery, “ the coroner shall pay the jury and all others concerned in such inquisition their lawful demands.” This was omitted from the Digest of 1822, and these expenses were made payable out of the treasury of the town in which the body was found. But, in January, 1824, it was again enacted, that the charges of inquisition shall be paid out of the estate of the deceased; and that “ it shall be the duty of the coroner to exhibit said charges as a claim against said estate, and to enforce it by law, if need be.” So this act continued down to the revision in 1857, where we find it in terms somewhat less pointed, but unchanged in substance. We think it is quite clear, that it was not intended that the estate of the deceased should be subject to the several suits of all those who might have claims for fees or expenses of the inquest; but that all such fees and expenses should be demanded and received by the coroner, to be paid out, when received, to the several persons entitled.

The plaintiff, therefore, in our opinion, is not entitled to maintain this suit; but it should have been a suit in the name of the coroner, for all the expenses of the inquest.

It is not necessary to consider the other objection made to a recovery by the plaintiff, in order to determine this suit, and we are induced to do so. only in view of tire probable result of our determination of the first objection, viz.: that it may render another suit necessary to be brought by the coroner, for the expenses, generally, of the inquest. The second objection is, that in order to maintain a suit, even by the coroner, the reasonable expenses of this service should be ascertained and settled by the town council. It will, we think, be agreed, that prior to the passage of the amendatory act, Ch. 333, there was no power in the coroner to order services of this description, nor was there any provision for the payment of any such, either from the treasury of the State, or of the town, or from the estate of the deceased! "We find, in this act, provision made upon this subject, and thus made : — “ The town councils shall allow the reasonable expenses of post mortem examinations and chemical analyses ordered by the coroner at the taking of any inquest.” This is made part of section 5, Ch. 230, and may properly be added to the several items of fees allowed for coroner’s inquests, contained in that section. As to all the other items, the sums to be allowed are definite and certain. For the inquest, for the coroner by the day, for the jury by the day, for summoning the jury, for each page of the testimony, are sums, fixed and. definite. It seems to have been the object of the entire chapter, 230, “ Of fees and costs in certain cases,” to prescribe a rule for such allowances, so that it would be a mere matter of calculation, to determine the amount. Whenever it is not practicable to do so, from the nature of the services, provision has been made for making it certain and definite. For aid in the execution of process, what is reasonable is to be allowed by the court; so, to the officer, for keeping property attached on mesne process, the court shall allow what is reasonable compensation; and so, for serving a search warrant. This is but another instance of the same kind. It does not seem to have been contemplated that the amount of the fees, costs, or expenses provided for in this chapter, 230, should be left for an assessment by a jury ; and if, in this case, it is to be so left, it is an excepted'case. There i§*.an additional reason why, in the case of the expenses of an inquest, there should be no such exception. The entire expenses, all the rest of which are ascertained or ascertainable by calculation merely, are to be by the coroner exhibited as one claim against the estate of the deceased, and if suit therefor be necessary, he may recover them in one action. The very form of the provision made in the amendatory act, — “ The town councils shall allow the reasonable expenses of post mortem examinations and chemical analyses ordered by the coroner,” — would seem to require this construction. No right to payment out of the estate for any such services is given, except by this language; and if this be omitted, the plaintiff is without remedy. The languáge which gives him the right, prescribes the mode of ascertaining the amount.

We are of opinion, that the town council of the town where the inquest is held must first determine and allow the reasonable expenses for such services, before a suit can be maintained therefor. Upon both points, judgment must be for the defendant, for her costs.