Usher against Walters, Esquire
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 1843 |
| Date | 28 April 1843 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1007
IN THE QUEEN'S BENCH
*Q. B.H4. TJSHKR V. WALTERS 1007 usher against walters, esquire. Friday, April.28th, 1843. Plaintiff declared in debt against the sheriff, alleging that defendant had, in executing a fi. fa. against plaintiff, levied a sura of money named, including sums named severally for expenses and landlord's rent; and that, contrary to the form of the statutes, he took of plaintiff more consideration and reeompence than by the statutes is allowed, that is to say, 101. 4s. 6d., when by the statutes there were allowed only, &c. (naming the several sums), being at the rates severally named for poundage, for the warrant, for executing the warrant, for the man left in possession during a time named, for the sale, and for the certain certificate thereof, the excess being 41. 7s. 9d., whereby, and by force of the statute, an action accrued to plaintiff to demand, &c., treble such excess. Qusere, whether, since stat. 7 W. 4 & 1 Viet. c. 55, the action for treble the excess, on stat. 29 Eliz. c. 4, g. 1, can be maintained 1 Assuming that it could. Held, on special demurrer, that this declaration was bad for not shewing how the several Bums which could legally be taken were fixed, and of what items the excess was made up. Debt. The first count charged that, whereas heretofore, to wit, fi. fa. issued out of this Court, directed to the Sheriff of Gloucester, commanding the sheriff to levy of the goods and chattels of the now plaintiff a debt of 71. 13s. which Joseph Haydon had recovered against the now plaintiff, as also 51. 9s. awarded [564] to Haydon for damages by reason of detaining the debt, and costs and charges, with interest, &c., making together the sum of 131. 2s.; which writ afterwards, and before the delivery thereof to the sheriff, to wit on, &c., was indorsed to levy the whole, with 5s. for writ, besides, &c.; and which writ, so indorsed, afterwards, to wit on, &c., was delivered to defendant, who then, and from thenceforth until, and at and after, the committing &c., was Sheriff of Gloucestershire, to be executed ; by virtue of which said writ defendant, so being sheriff, &c., afterwards, to wit on, &c., seized and took in execution divers growig crops, goods and chattels of the now plaintiff, of great value, to wit of the value of 501., and then levied thereout a certain sum of money, to wit 261. 3s. 9d. and no more, that is to say the moneys mentioned in the said writ and directed to be levied as aforesaid, the said sum of 5s. for the said writ, the sum of 71. paid by the said Joseph Haydon for rent before the removal of the said growing crops, goods and chattels, and the sum of 51. 16s. 9d. for poundage fees and expences of execution as hereinafter mentioned : yet defendant, so being sheriff, &c., not regarding the form of the statutes in such case made, but contriving to injure plaintiff by reason and under colour of his office as such sheriff and under colour of the said writ, afterwards, and within one year next before the commencement of this suit, to wit on, &c., wrongfully, illegally and oppressively had, received and took of the now plaintiff, for serving and executing the said writ, more and other consideration, and reeompence than by the statutes in such case made is allowed ; that is to say, the sura of 10L 4s. 6d.; when, by the statutes in such case made, there was and is allowed to the defendant in that behalf [555] the consideration and reeompence following, and no more or other consideration or reeompence; that ia to say, the sum of 12d. in the pound of and for every 20s. that he levied, extended and delivered in execution as aforesaid, the same amounting to a certain sum, to wit 11. 6s. and no more ; for the warrant granted by the defendant to his officer upon the said writ a certain sum, to wit 6s. and no more, the most distant part of the said county of Gloucester not exceeding 200 mites from London; for the bailiff executing the warrant on the said writ a certain sum, to wit 11. 11s. and no more; for the man left in possession of the said growing crops, goods and chattels, for a certain time, to wit five days and no more, a certain sum, to wit 11. 5s. and no more; for the sale by auction of the said growing crops, goods and chattels a certain sum, to wit 11. 6s. 3d. and no more ; for the certificate of sale to save auction duty a certain sum, to wit 2s. 6d. and no more ; and defendant thereby then had, received and took a large sum, to wit 41. 7s. 9d., over and above the consideration and reeompence allowed in that behalf, contrary to the form of the statutes in such case...
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