Betts v. Norris

After a continuance for advisement, the opinion of the Court was drawn up by

Weston C. J.

By the act establishing and regulating fees, statute of 1821, c. 105, the officer is allowed on a capias or attachment, an additional fee for attaching property, which is called a special service, only where he has the written directions of the plaintiff, his agent or attorney, so to do. For the service merely, where no special attachment is made, he is to have a less fee. The same distinction is preserved, in the additional act respecting sheriffs, statute of 1829, c. 445. And the practice has been uniform, to make only a nominal attachment, where no such directions are given.

Although the precept in eyery writ of attachment is, to attach to the amount therein prescribed, yet where a special attachment is not ordered in writing, the return of a nominal attachment has been received as a sufficient seryiee. And we are of opinion, that by virtue of the statutes, and the settled practice under them, the officer was under no legal obligation to make a special attachment, without written directions to this effect, from the plaintiff, his agent or attorney. He was in this case entitled to no fee for such a sen-vice, and if he has done it gratuitously, by which the plaintiff has been secured lo a large amount, he has no just or legal right to complain, that it has fallen somewhat short of the final amount of his judgment. We are very clearly of opinion, that no official delinquency has been made out against the officer.

Nonsuit confirmed.