McGee v. Dillon

Chief Justice Mebcub,

delivered the opinion of the court,

The plaintiffs in error brought twenty separate suits against that number of different persons, before a justice of the peace. Ten of these w'ere brought on one day, and a like number on another day, one week thereafter. All these defendants resided in one vicinity. The defendant in error as constable, served one of the writs of summons on each person against whom the same issued. He performed these services on two general journeys. He charged travel on each writ, and the same was taxed and judgment entered therefor in each case as a part of the costs. As most of the travel was over the same road and on two journeys only, the plaintiff in error seeks to avoid the payment of fees for travel on all the writs exceeding one.

The fee bill gives to a constable “ traveling expenses in all. cases for each mile circular six cents.” The language “in all cases ” is used in the sense of each ease. If that construction be departed from there is no number of cases so large as to be excluded from the word “ all.” It would not be limited to time, place or parties. The fee bill deals with services in each particular case. Its language must be so understood as to give effect to its intent.

Each defendant served, and against whom judgment was recovered, is not subjected to any more costs than if he was the only person sued. lie does not claim exemption from the payment of costs for travel in the writ against himself. Is the plaintiff in those several judgments to collect for the travel on each writ, pay the constable on one only, and pocket the costs which he collects on the others ?

It is said the constable should elect on which writ he will charge for his travel, and not charge on the others. That might be satisfactory to those who were thereby exempted from payment; but the one elected would not reap any benefit from this discrimination. He cannot divide the sum he might thus pay into as many parts as there are defendants, and by suit recover from each a contributory share. The liability of each for costs is to be determined in the suit against him in which they were made. There is no privity of contract between the several defendants arising from the fact that each is severally indebted to the same plaintiff.

It is true where the party served a subpoena on his own witnesses at the same time in several suits brought against him, it was held in Horner v. Harrington, 6 Watts 331, that he was entitled to charge for one travel only. The purpose of the fee bill is to prescribe for services rendered by officers and by witnesses, and not for those of a party litigant. Hence the allowance to the party for his travel cannot bo held to control the language of the fee bill giving compensation to an officer.

In Towanda Bank v. Ballard, 7 W. & S. 434, Ballard hold 292 bills of five dollars each, and some other notes of $10, $20 and $50 respectively on the bank. Instead of bringing one suit in the common pleas, he brought three hundred and thirty-seven suits before a justice of the peace, on one day 227, on another day 26 and on a third day 84, all against the same defendant. This court held that while the bank should be charged with the costs of one suit only, yet that Ballard might be liable to the officers for all costs that accrued. That case is not applicable to the case before us. Here the costs were made at the instance of the plaintiffs in error. They commenced the suits at such times as best suited their convenience. The defendant in error duly performed the services required of him in each case. The defendants in those cases are not here complaining. The learned judge was clearly right in entering judgment in favor of the defendant in error on the case stated.

Judgment affirmed.