Cutter v. Howe

• Decision Date: 22 May 1877
• Citation: 122 Mass. 541
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Leonard R. Cutter v. Henry F. Howe & others

122 Mass. 541

Leonard R. Cutter v. Henry F. Howe & others

Supreme Court of Massachusetts

May 22, 1877

Suffolk. Appeal by the defendants from the taxation of costs by the clerk of the Superior Court, in an action of contract.

The writ was dated December 22, 1874, and was returnable on the first Tuesday of January, 1875, and directed the officer "to attach the goods or estate of Henry F. Howe Charlotte Howe and Charlotte A. Lyman, all of Boston," "to the value of five hundred dollars."

The officer's return upon the writ was as follows "December 22, 1874. By virtue hereof I attached certain goods and chattels at No. 7 Bulfinch Place as the property of the within named Charlotte Howe and Charlotte A. Lyman, and left at the last and usual place of abode of each a summons for their appearance at court. On the same day I attached certain goods and chattels at 58 Green Street as the property of the within named Henry F. Howe, and left at his last and usual place of abode a summons for his appearance at court. Service and travel, 4.98. Keeper, (each place,) 75.00. Custody and oath, 30.00. Horse and carriage, .72. $ 110.70." Annexed to the return was the certificate of the officer, under oath, that the expenses taxed in the return had been incurred and were reasonable.

On June 29, 1876, the officer, by leave of court, amended his return by adding: "Keepers 15 days in house, $ 45.00. Custody in house 15 days, $ 15.00. Keeper 1 day in store, $ 3.00. Custody in store one day, $ 1.00. And he says that said fees actually accrued after the return of this writ to court, and that the same are just and reasonable."

The clerk allowed costs to the plaintiff for "service, $ 174.70," being the aggregate of the above sums. The defendants objected to the allowance for "keeper's fees and custody," and appealed from this taxation.

At the hearing, on appeal, the plaintiff offered to prove, and the defendants admitted, that it had been the "practice in the office of the sheriff of Suffolk for more than thirty years to tax the same fees for like services as those taxed in this case, and that said fees were reasonable. The Superior Court affirmed the taxation of costs; and the defendants appealed to this court.

Order of the Superior Court in the taxation of costs reversed, and the case to stand in that court for further proceedings.

C. R Train, for the defendants.

A. E. Pillsbury, for the plaintiff.

Lord, J. Endicott & Soule, JJ., absent.

OPINION

Lord, J.

The fees to which sheriffs and their deputies are entitled for service of processes are fixed by law. Gen. Sts. c. 157, § 4, as amended by St. 1865, c. 101. By the St. of 1865, c. 101, the fees of sheriffs and their deputies are raised substantially one hundred per cent. above the previously established rates. It provides that the fee shall be "for the service of a capias, or of an attachment with summons, fifty cents for each defendant on whom it is served; and if the officer, by the direction of the plaintiff or his attorney, makes a special service of such writ, either by attaching personal property or arresting the body, he shall be entitled to one dollar for each defendant on whom the writ is so served." It further provides "for travel in the service of all original writs," &c., "four cents a mile each way, from the place of service to the court or place of return; and, if the same precept is served on more than one person, the travel shall be computed from the most remote place of service, with such further travel as was necessary in serving it." The St. of 1864, c. 274, provides that "whenever it shall be necessary for any officer, in the service of civil process, to use a horse and carriage, he shall be allowed therefor twelve cents a mile, to be computed one way: provided, that unless the distance for which such conveyance is actually and necessarily used exceeds two miles one way, there shall be no allowance therefor."

In this case, the parties are all described as of Boston, and the attachments are alleged to have been made, one at 58 Green Street and the other at 7 Bulfinch Place; and inasmuch as no claim is made that the charges for service, travel and carriage are illegal, the provisions are cited for the purpose of showing that the law has a fixed and definite fee for the duties performed by an officer in the service of processes of this kind; and that such fee is fixed by law, and is not the subject of contract, so far as concerns the taxation of costs. The question for us to decide is what fees are subject to be taxed as costs.

The specific items objected to are "keeper" and "custody." The former of these words has been long known to the profession in all parts of the Commonwealth, and has a well understood meaning; the latter is of more recent use, and perhaps is to a considerable extent of local use, and its meaning not so well understood. So far as we can learn from the facts before us, it is, in this case, probably used to denote the responsibility which the officer is under, when he puts a keeper over property at the price of three dollars per day, which responsibility is charged at the rate of one dollar per day for the officer.

Are these charges, or is either of them, a legal fee which may be included in costs to be taxed? We think not. It may be convenient and even necessary for an officer, who is directed to make attachment of personal property consisting of a large number of chattels, temporarily to put them in charge of a keeper, while he is making the necessary arrangements to take them into his immediate possession and control, and the question is not raised here whether the expense of such charge and keeping is incidental to the service and properly taxable as a part of the costs. We cannot however doubt that the keeping of property in the building of the defendant by means of a keeper, without the consent of the defendant, is a violation of duty, which makes the officer a trespasser ab initio. We say, "without the consent of the defendant;" but the consent of the debtor does not allow the officer to charge a fee, to become a part of the taxable costs of an action, while it may relieve him from liability as a trespasser to the party consenting.

The attachment by an officer of personal property contemplates the immediate taking and keeping possession of the same by him, and retaining the custody and possession in order to enable him to seize the same upon any execution, which may issue in favor of the plaintiff, in the suit in which the attachment is made. This rule has been recognized by a long series of decisions in this Commonwealth, and in the various sections of the statutes upon the subject. Gen. Sts. c. 123, §§ 32, 42, 46. Section 57 of the same chapter makes provision for the case in which such possession cannot be taken. It is as follows: "When an attachment is made of articles of personal estate which, by reason of their bulk or other cause, cannot be immediately removed, a certified copy of the writ, (without the declaration,) and of the return of the attachment may, at any time within three days thereafter, be deposited in the office of the clerk of the city or town in which it is made; and such attachment shall be equally valid and effectual as if the articles had been retained in the possession and custody of the officer."

Does the consent of the debtor, or even his agreement to pay the expenses of the keeper, make those expenses a subject to be included in the taxation of costs? To this we answer "No." The costs which can be taxed by the plaintiff against the defendant are only such costs as the officer has a legal right to demand of the plaintiff and to compel the plaintiff to pay to him; and no agreement between the officer and the defendant can create a cause of action by the officer against the plaintiff. The plaintiff delivers his writ to the officer with instructions to make an attachment. The officer is bound by law to make the attachment according to law; and the plaintiff is bound to pay the officer the fees for such service as fixed by law; and any agreement between the officer and the defendant cannot make the plaintiff liable for any other than the fees which the law has fixed for such service. If, as matter of contract, the defendant chooses for his own benefit to pay a keeper, and the officer is willing to assume the responsibility of such a contract, we say only, without intimating whether such a contract would or would not be valid in law, that any payment on such a contract would not be a part of the taxable costs which the plaintiff must advance to the officer to be repaid by the defendant to him. The same rule would apply, if the plaintiff directed the officer to employ a keeper, instead of taking possession of and removing the goods; nor could the plaintiff and officer agree to such mode of preserving the attachment, and make the expense of it a part of the taxable costs. The plaintiff can recover only the fee which by law he is bound to pay the officer for making the attachment according to law, and no agreement between him and the officer can enlarge the amount which the law fixes as the fee for service. If plaintiff, defendant and officer all agree to a service different from and for a compensation other than that which the law fixes, such agreed compensation, whether or not it is one which may be enforced at law between the parties, could not be made a part of the taxable costs; for this obvious reason, among others, that if any misunderstanding should arise between them there is no mode of ascertaining their respective rights upon the taxation of the costs of suit. These remarks, of course, are not intended to apply to agreements, made by parties to the cause and in the course of proceedings, as to...