James B. Ramsay & Co. v. Overaker

Had the goods remained in the hands of the

sheriff, and been sold under the order of the court, and the application was to be allowed for the storage as a charge on the fund, the court would have the power, and it would be its duty, as it has been the practice, to make the allowance. It is not a compensation to the sheriff for services, but for necessary expenses incurred in taking care of the property. The same principle applies in allowing for the keeping of horses, or stock, when taken under an execution. A very general principle, frequently laid down, governs such cases. 2 Myl. & Cr. 406, 424, Attorney General v. Mayor of Norwich; 3 Id. 675, Dryden v. Frost; 2 Phill. 220, Bright v. North; 4 D. & E. 591, King v. Essex; 1 B. & Ad. 232, King v. Com. of Sewers, etc.; 69 E. C. L. 562, Regina v. Com. of Sewers, etc.

The question, as it is presented to me, is very different. I am really asked, upon matter out of the record, to render a personal judgment against the plaintiff. It is not a case of the retaxation of costs, for there is nothing in the record or proceedings to show any such costs; and, what is more important, there is no statute which provides for any such item in a bill of costs. It is not a case of an amendment of a sheriff’s return, even could there be a return of any such item as costs, for the charge occurred after the return of the process.

Without undertaking to decide whether the plaintiff in execution may not be liable to the sheriff in an action, upon the principle of indemnity, I feel clearly satisfied that the court has no jurisdiction, upon a motion, to order the payment of this charge by the plaintiff'. There appeal’s to be, in this respect, some defect in our attachment proceedings ; and even if the sheriff may have indemnity by action, he ought to be allowed to require an advance for his charges and expenses in taking care of the property. There is a provision of this description, in the common carrier act, as to the taking of a watercraft; and a similar provision would seem to be required in attachment proceedings.

Motion overruled.