Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1899-03-05

case of James A. Henry v. James A.
Cunning, ]. p, and w. ]. Colts, appli-
cation for writ of prohibition, Judge
Hervey gave the relief prayed for in
an opinion which will be of wide in
terest. The matter is one of consid-
cradle Importance, and number Of
business men are interested. For this
reason the opinion of the Court is pub
lished in full.
1t may be stated, as preliminary,
that the matter at issue is the right
or claims to another, who brings suit
to collect. John Anderson, constable,
sold or assigned certain claims of this
nature to w. J. Colts, and the latter at
tempted to collect the money by suit,
distress and sale, one or more attach
ments having actually issued against
business men.
The opinion of the Court is as FOL
, lows
-.
J. P, ct al.-Application for prohibit
| ton.
1.-The only question which is pre-
scented under the petition in this case
| is, whether under any circumstances
| one to whom a constable assigned fees
| that he has earned may maintain a
suit therefor against the person for
whom the services were rendered.
The section of the statute which
control the collection of constables
| fees in civil cases are Secs. IA to Is
| inclusive OF Chap. 1877. The other
sections of that chapter are only appli-
cable to jcstices and constable's fees
| to the extent that they are made so
| by the sections named. Notice what
provisions the law makes to secure
| these officers the payment of their
| fees
q. It provides that fees are charge
| able to the person at whose instance
| the services are rendered (Sec 14). 2.
| The officers may require the proper fees
| to be paid before the services are rem
dered (sec 16). 3. After the service
is rendered, if fees have not been paid,
the officer is not compelled to await
until it is ascertained whether the
costs can be made from the other
party, but he may issue his fee-bill
against the person chargeable, and
| place it in the hands of any constable
| in the county in which the person
| charged resides (sec. 14).
| The manner in which the fee bill is
| to be made out and collected is fixed
by secs. &c, 20 and so. The officer has
| the power to distrain under it as he
| might do under writ of f1era facias.
1T will be observed that by these
| provisions the constable is made alb
solutely secure as to the fees. If he
| doubts his ability to collect from the
| plaintiff he can refuse to perform the
services until he is paid, and after the
service is rendered he has the most
ample means Of collection which the
| law can afford.
| But while the statute gives the Off
| Ger this ample protection and affords
| him every convenient remedy for the
collection of his fees, it also takes care
that the officer shall not exact any but
| legal fees; and with this end in view
| it carefully guards the manner in
| which fees may be collected, and pro-
vides: l. That no person shall be
I
produced to him, signed by the offlcer
| to whom the fees are due, expressing
the particular item for which the fees
are charged. (Sec. 26.)
THE reason, in part, for this provis-
| ion appears in the latter part OF sec.
| %, and in the case OF constable, In
sec. Is. This last section, as amended
by the Acts of 1895, provides that il
| any Justice or constable issues fee
bill for any services against person
not chargeable Herewith, or Tor a
| greater amount than the law allows,
! four times the amount of such lmprop-
| err charge may be recovered OF the of1l-
Ger. By requiring a fee-bill the stat
ute places in the hands OF the person
| charged the means OF determining
whether there is any improper charge,
and the evidence on which to bring the
| suit for recovery.
80. II any such officer, with intent
! to defraud, issues a fee-bill for an i'm
| proper charge, the officer may be in
! dicted for a misdemeanor (scc. Is,
Acts 1895, p. So
| "The evident purpose of this stat
| ute is to guard with the greatest care
| the matter of justices and constables'
| fees. and to accomplish this by pro-
viding, first, ample means of securing
| the fee to the officer, and second, by
guarding the person charged from il
| legal exactions. When the officer has
performed his service he has at once
| as complete a remedy for the collec-
| ton of his fees as he could have if he
| had Judgment for them. Is it, then.
| the intention of the law that he may
also. at his discretion, sue and get a
Judgment? 1t seems to me clear that
| such is not the case, as by sueing the
officer could accomplish the very thing
that the law seeks to prevent-impose
extra charges in the way Of additional
costs.
"But there are other reasons why a
suit like this should not lie. If the
officer can bring his suit for fees, he
might include in such suit improper
charges and escape liability imposed
by the statute, for the statute (sec. 15)
only applies to the officers who issues
| a fee-bill. Or, if the officer assigns his
fees, as is the case. and the assignee
brings suit, such suit may embrace i'm
proper charges, and yet the remedy
is not available.
Again, the statute makes the officer,
| who knowingly and with intent to de-
| fraud, issues an improper fee-bill,
guilty of a misdemeanor. But clearly
t1ic would NOT anDlv an assign O.