#### BUSHNELL v. EATON.

Sheriff — poundage-—amercement—costs—relaxation—payment of money to party — oppression by sheriff.

Sheriffs can only be amerced in cases specially pointed in the statute; and the taxing and collecting too much costs of the defendant in execution, cannot be remedied by amercement.

A party against whom too much costs are taxed by an officer, may resist payment and have the taxation reviewed by the court, or he may pay and have the taxation reviewed and corrected afterwards.

The proceeding in amercement is an innovation upon the course of proceeding at the common law and penal, and is only to be pursued strictly.

If money is not paid to the sheriff, and does not pass through his hands, he has no right to poundage, though paid while he has an execution.

For other oppressive acts than those for which a sheriff may be amerced, the injured party has his remedy by action.

Bushnell, sheriff, had an execution (a fi. fa.) against Eaton from the Common Pleas. During the life of the execution, the defendant paid to the plaintiff the amount of his judgment, and paid the costs, including poundage, upon the money paid over to the plaintiff to the sheriff, and the execution was satisfied. Eaton afterwards moved the Court of Common Pleas to amerce Bushnell for improperly taxing the poundage on the execution, when the money did not come into his hands, which the court ordered. The proceedings are now brought here by certiorari, to reverse the order of amercement.

*Crowell*and Knight, for the plaintiff,

objected, that the plaintiff had no notice of the motion to amerce — the act of the sheriff was not one for which he could be amerced: (29 *O. L.*109; 1 *Saund. R.*259; 12 *Peter sdf.*124.)

*Webb*and McConnell, contra,

cited 2 *O. R.*215; *1 O. R. 368-,*29 *O. L.*219.

Wood, J.

By the statute, (29 *O. L.*109, 10,) sheriffs are made liable to amercements at the instance o.f the defendants in execution, for refusing to sell property levied upon; for neglect to appraise land and return a copy to the clerk; for neglect to return the execution, or an inventory of the goods, &c. unless he has made the money in full; or neglect to pay over on demand any surplus money made on sale of defendant’s property, *more than*sufficient to satisfy the execution. No amercement is provided for the oppressive acts of the sheriff, other than those enumerated — for all others, the party injured is left to his remedy by action. The case before us, is not within the law — no money was made on a sale of property. The money was” voluntarily paid to the sheriff. *He*has taxed the costs, -as he was bound by his oath to do. If he taxed too much, more than he had a right to, the defendant might have resisted payment, and submitted the taxation to the revision of the Court of Common Pleas, and had it corrected. He could also have reviewed the taxation in that court, after he had *721paid, and had it corrected. He could not amerce: because the amercement is a penal proceeding, varying from the course of the common law, and only to be pursued when expressly authorized by law. The order amercing the sheriff is reversed. s

It is unnecessary to look at the other point discussed. The right to poundage would seem to be settled against the sheriff in the case of *Vance*v. *Bank of Columbus:*(2 *O. R.*215.)