duty he cannot recover a remuneration beyond that which the law expressly allows him, even though there has been an express promise to pay him (b). So a high bailiff or sheriff, when called upon by the king's writ to return members of parliament, although he incur a great expense therein, cannot, at common law, recover from a candidate any part of the expense so incurred, inasmuch as it arises from acts which he is bound to do by virtue of his office (c). A promise to pay more than the law expressly gives is void, for want of consideration.

Upon executing a fieri facias, the sheriff is by statute 29 Eliz. c. 4, entitled to 12d. for every 20s., if the sum levied does not exceed 100l., and 6d. for every 20s. over and above that if he exacts more, he is by that act liable to a penalty of 407., one moiety to the queen, and the other to the informer, and also to an action by the party grieved for treble damages (d). By the recent stat. 7 Will. IV. & 1 Vict. c. 55, s. 2, the amount of the sheriff's fees in the execution of civil processes is regulated by what is allowed by the masters, under the sanction of the judges; and by sect. 3, the remedy for extortion is by summary application to one of the superior courts. But the statute, though it enumerates and repeals other statutes, does not mention the stat. of Eliz. or the stat. 3 Geo. I. c. 15, or 43 Geo. III. c. 4; and consequently the statutes of 29 Eliz. c. 4, 3 Geo. I. c. 15, and 43 Geo. III. c. 46, s. 5, are still in force. And accordingly it has been held that the sheriff is still entitled to his poundage under the act 29 Eliz. c. 4, as well as to his fees under the above act (e). The sheriff is entitled to the poundage allowed him by the stat. of Eliz. after seizure of the goods, although the parties enter into a compromise before he sells them (f), or although the judgment and execution are afterwards set aside for irregularity (g). He is not entitled to poundage if the money is paid to him without any levy (h); nor where money is paid into court by the sheriff, under the 43 Geo. III. c. 46, s. 2, or 7 & 8 Geo. IV. c. 71 (i).

(b) Bridge v. Cage, Cro. Jac. 103. (c) Morris v. Burdett, 1 Camp. 218; 2 M. & Sel. 212.

(d) See Anon. 1 Salk. 331; Woodgate v. Knatchbull, 2 T. R. 158; R. v. Marsack, 6 id. 771; Savage v. Smith, 2 W. Bl. 1101; Tyte v. Glode, 7 T. R. 267; Deacon v. Morris, 2 B. &

Ald. 393.

(e) Davies v. Griffiths, 4 M. & W. 377; 7 Dowl. 204, S. C.

(f) Alchin v. Wells, 5 T. R. 470. (g) Rawstorne v. Wilkinson, 4 M. & Sel. 256.

(h) Graham v. Grill, 2 M. & Sel. 296. (i) Stewart v. Bracebridge, 2 B. &

The sheriff could not before the act 7 Will. IV. & 1 Vict. charge the expenses of selling the goods by auction, because he is bound to sell the goods himself; yet, if the auction were at the request of the plaintiff or defendant, the party so requesting it must pay the expenses of it (k).

Also before the above act of 7 Will. IV. & 1 Vict. c. 55, it was held that the sheriff was not entitled to the expense incurred in taking and keeping possession of goods under a fi. fa. at the request of the party suing out the writ, although they were not sold, on account of his refusing to give an indemnity against the claims of third persons (); also that he was not entitled to retain anything beyond the regular poundage, for expenses incurred by keeping possession of the goods, in consequence of an injunction (m). But the judges of the Common Pleas seem to have been of opinion, that, where the sheriff did any thing beyond his official duty, in allowing time for dividing the property seized into lots, for the benefit of selling them to more advantage, at the instance of the defendant, the officer was entitled to some remuneration beyond poundage (n). And perhaps, since the above act of 7 Will. IV. & 1 Vict. c. 55, a more liberal allowance may be made to the sheriff in similar cases.

There was some doubt formerly who should pay the expenses of the execution of a fi. fa.; but now, by 43 Geo. III. c. 46, s. 5, "in every case of execution against the goods of a defendant, the plaintiff may also levy the poundage, fees and expenses of the execution, over and above the sum recovered by the judgment (o)." And under the term "expenses of the execution," used in the act, is included the expense of levying. The plaintiff, in levying for these expenses, must always take care to levy only such a reasonable sum as would be afterwards allowed upon taxation, otherwise the court, upon application, will order the excess to be restored, with costs (p). The statute of 43 Geo. III. only extends to an execution at the suit of the plaintiff'; and where it issues at the suit of the defendant, the expenses of it

Ald. 770; 1 Chit. Rep. 529, S. C.; Haines v. Nairne, 2 Dowl. 43; Hunn v. Brine, 6 Moore, 124.

(k) Woodgate v. Knatchbull, 2 T. R.

157.

(1) Bilke v. Havelock, 3 Camp. 374. (m) Buckle v. Bewes, 3 B. & C.

688; 5 D. & R. 595, S. C.

(n) Stevens v. Rothwell, 6 Moore, 338; 3 B. & B. 143, S. C.

(0) See Rumsey v. Tuffuell, 9 Moore, 425; 2 Bing. 255, S. C.

(p) Benwell v. Oakley, 2 Taunt.

174.

must, it seems, be borne by him (g). It seems that it does not extend to executions at the suit of the crown (r).

Upon executing a ca. sa. the sheriff is by stat. 29 Eliz. c. 4, entitled to 12d. in every 20s. if the sum does not exceed 1007.; and 6d. for every 20s. over and above that sum, in the same manner as upon the fi. fa.; which by the 3 Geo. I. c. 15, s. 17, is to be calculated upon the amount of the debt really due, and marked on the back of the writ. The sheriff's right to poundage under this act is not affected by the act 7 Will. IV. & 1 Vict. c. 55 (s). It has been decided that the sheriff is entitled to this poundage, although the defendant goes to prison without paying the debt (t); or, although the defendant was already in custody of the sheriff when the ca. sa. was delivered to him (u). But it has been considered that the plaintiff could not levy under a ca. sa. the poundage, officers' fees, or other expenses of the execution, above the sum recovered by the judgment, unless the judgment was for a penalty, or there be an express authority for such levy by the defendant's agreement.

Upon executing an elegit or habere facias possessionem, the sheriff is, by the 3 Geo. I. c. 15, s. 16, entitled to 12d. in every 20s. of the yearly value of the lands, &c., whereof possession or seisin shall be given, if such yearly value exceed not the sum of 1007.; and 6d. in every 20s. of the yearly value above that sum (x). But where the goods are taken under an elegit, the sheriff is entitled pro tanto to poundage, as he would under a fi. fa.

Upon executing a writ of levari facias for a crown debt, the sheriff was not entitled, before the 7 Will. IV. & 1 Vict. c. 55, to poundage (y); and perhaps that is the case still.

The sheriff may maintain an action for his poundage, &c. (2); or he may retain it out of the money levied under the execution. But he cannot refuse to execute a writ until his fees are paid (a).

Nor is he justified in taking goods to secure his poundage, after he has consented to their being delivered to a third person under a claim of property (b).

Besides the remedy given by the above stat. of 29 Eliz., the party upon whom the extortion is committed may maintain an action for money had and received against the sheriff. The party guilty of the extortion may also be indicted at common law (c). But the sheriff, though he may be sued, cannot be indicted for the extortion of his officer (d). The treble damages mentioned in the statute of Eliz. are calculated at three times the amount of the damages found by the jury (e); the damages themselves being in general the sum overcharged (f). By the 7 Will. IV. & 1 Vict. c. 55, ss. 3, 4, there is a remedy for extortion by summary application to the court against the offender; how far this enactment affects the other remedies above pointed out remains to be decided.

A commissioner to examine witnesses may maintain an action for his fees (g).

XIV. SURVEYORS.

A surveyor is bound to use due care and exercise a reasonable degree of skill in executing the business intrusted to him. If he be employed by a committee for erecting a bridge and forming a road to it, to make an estimate of the expense of the works, he is bound to ascertain for himself by experiments the nature of the soil; although a person previously employed by such committee, having made experiments, gives him, by their desire, information of the result. And if an engineer or surveyor so employed make a low estimate, and thereby induce persons to subscribe for the execution of the work who would otherwise have declined it, and it turn out afterwards that such an estimate is grossly incorrect, either from negligence or want of skill, and that the work cannot be done but at a much greater expense, he is not entitled to recover any thing for his trouble in making such estimate or connected therewith (h).

(b) Goode v. Langley, 7 B. & C. 26. (c) Smith v. Mall, 2 Roll. Rep. 263; Palm. 318, S. C.

(d) Woodgate v. Knatchbull, 2 T. R. 148, per Gould, J.; Sanderson v. Baker, 3 Wils. 316.

(e) Woodgate v. Knatchbull, 2 T. R. 159; Buckle v. Bewes, 6 D. & R.

1; 4 B. & C. 154, S. C.

(f) Woodgate v. Knatchbull, 2 T. R. 158; and see Buckle v. Bewes, 3 B. & C. 688; 5 D. & R. 495, S. C.

(g) Stokeld v. Collingson, Carth. 208; Comb. 186, S. C.

(h) Moneypenny v. Hartland, 1 C. & P. 382; 2 id. 378, S. C.; on a se

586

In Upsdell v. Stewart (i), which was an action for work and labour done as a surveyor, the plaintiff demanded 57. per cent. on all money charged and allowed by him as surveyor to the different tradesmen. Evidence was offered that it was the uniform practice of surveyors to charge 51. per cent. on all money allowed to the workmen. But Lord Kenyon considered such demand exorbitant; and observed "that the plaintiff was entitled to a reasonable compensation for his labour, but was not to estimate that by the money laid out by the defendant in finishing his building." In a subsequent case, where a surveyor claimed 57. per cent. on the money laid out by the defendant in altering certain buildings, the plaintiff having as a surveyor superintended such alterations, Lord Ellenborough left it to the jury to say, "whether this mode of charging was vicious or unreasonable, and if they thought it was, to deduct accordingly (k).”

A surveyor, who, according to usage, makes out, by the direction of the architect employed to prepare the specifications, the quantities of work for a building contract, which, by the terms of the letting, was to be paid for by the successful competitor, may sue the parties advertizing the contract, if they prevent competition by declining to proceed with the building (7).

The effect of an agreement to pay a surveyor a per centage on the sum which may be obtained as the value of the premises sold, &c., by him has been already noticed (m).

XV. WITNESSES.

Where a person living within the bills of mortality is subpoenaed to give evidence within the same, the practice seems to be to leave a nominal sum (1s.) with the subpoena; but in other cases a person subpoenaed to give evidence upon the trial of a cause is not obliged to attend, nor, if he attend, is he obliged to give evidence, unless his reasonable expenses are paid, or tendered him, not only for going to but also returning from the trial; and where less is offered, the witness is not obliged to

cond trial. See the rule as to agents, attorneys, and medical men, guilty of negligence, &c., ante, 548, 553, 559.

(i) Peake's R. 193. As to auctioneer's allowance, Maltbie v. Christie, 1 Esp. R. 340.

(k) Chapman v. De Tastet, 2 Stark.

R. 294. The jury found for the plaintiff for his whole demand.

(1) Moon v. Guardians of Witney Union, 3 Bing. N. C. 814; 5 Scott, 1, S. C.; ante, 22, 23.

(m) Ante, 543.