Tinsley v. Kirby ( 1877 )

The opinion of the Court was delivered by

Wright, A. J.

The appellant was convicted for assault and battery in the Court of a Trial Justice, and sentenced to pay a fine of five dollars and costs. The respondent, who was the Constable of the Trial Justice, stated to the Justice the amount of his fees, and the Justice issued his execution for the same, which amount respondent (as Constable) collected from appellant with the additional sum of two dollars and seventy cents more than the execution called for. The law clearly defines what the amount of Constables’ fees shall be. Section 16 of Chapter XXVI, p. 208, of the General Statutes is as follows: “If any Constable shall charge any other fees, or for any other service, than herein allowed, such Constable shall be liable to forfeit to the party injured ten times the amount of excess of fees so improperly charged, to be recovered by suit in the Court of Common Pleas.”

The appellant claimed that the respondent, as Constable, had collected from him unlawful fees, and charged for services not allowed by law, and brought this action in the Court of Common Pleas for ten times the amount of the excess charged and collected of him by respondent. The issue was referred to a Referee, who found that the respondent had collected ten dollars aDd ninety-six cents ($10.96) in excess of what he was entitled to as Constable in the case. No exceptions being taken to the report of the Referee, the appellant was entitled to judgment for the amount claimed in his complaint, and the Court below should have'so held. The object of the statute under which this action was brought is to prevent just such cases of extortion, oppression and injury as were perpetrated upon the appellant in this case. An execution issued by a Trial Justice cannot nullify a statute nor shield a Constable from the consequences of doing an act which the law plainly forbids. It was error to dismiss the complaint.

The motion must be granted.

Willard, A. J., concurred.