Campbell v. Cothran

By the Court, Mullin, P. J. It was decided in Adams v. Hopkins, (5 John. 252,) that an attorney is liable to a sheriff for his poundage on an execution. The same principle was again held in Osterhout v. Day, (9 John. 114;) Trustees of Watertown v. Cowen, (5 Paige, 510;) Judson v. Gray, (1 Kern. 408.) Asno case holding a different rule is referred to, we must follow these cases and hold the defendant liable to the sheriff for his poundage. By 2 Revised Statutes, 19, compensation was allowed a sheriff for serving an execution; and it was provided that on writs of fi. fa. and all other writs for levying money, poundage should be taken only “for the sum levied.” The Revised Statutes, (2 R. S. 536, 2d ed.,) authorized the sheriff to receive, for serving an execution for the ■ collection of money, for collecting $250 or less, two and a half cents per dollar, and for every dollar collected more than $250, one and a quarter cents per dollar. The amount of poundage to which a sheriff is entitled is the same under both statutes, and is measured by the amount collected on the execution. If an execution is delivered to a sheriff requiring' him [537] to collect $10,000, and he actually collects only $1,000, is he to receive poundage on the whole sum named in the process ? He may have levied on property sufficient to satisfy the whole sum, yet for want of bidders or other cause no more than $1,000 could be realized from the sale, yet his poundage must be limited to the amount collected. In the case supposed, the sheriff, by Ms levy, became liable for the whole amount of property levied on, and if that is the controlling consideration, he would be as much entitled to poundage on the $10,000 as would the plaintiff in this sMt. The property levied on may be destroyed by fire, or flood, without the fault of any person, and if it should be, would the sheriff be entitled to poundage on the whole amount of the execution by virtue of which the levy was made ? Section 943 of the Code gives, I apprehend, the correct construction of the provision of the Revised Statutes in relation to the poundage to which sheriffs are entitled. It declares that the sheriff shall be entitled to the same fees and compensation and disbursements under tMs title (the title relating to attachments) as are allowed by law for like services by the Revised Statutes. Provided, however, that no poundage or other compensation shall be allowed to the sheriff, (except, &c.,) unless a settlement shall be had or a judgment shaH be recovered and collected, in whole or in part, in the action in which the attachment issues. And when a judgment shall have been recovered and- collected in part only, the amount of Ms poundage shall not be estimated on any sum greater than the sum collected on such judgment. And when a settlement shall be had, the amount of his poundage shall not be estimated on any sum greater than the amount at which said settlement is made. It is not to be supposed that the legislature intended to lay down one measure of - compensation for executions on judgments [538] in attachment cases, and another for executions in other cases. The provisions of section 243 are so just, and are so fully in accordance with the language of the provisions of the Revised Statutes, and the decisions under them, that they should be received as a legislative interpretation of those statutes relating to the fees and poundage. of sheriffs. [Fourth Department, General Term, at Buffalo, June 3, 1873. Mullin, Talcott and M. D. Smith, Justices.] The courts had held that the sheriff was entitled to his poundage on the amount of an execution after levy, although it be compromised or released, or set aside for irregularity. Such a construction was a liberal one, and was necessary to enable the officer to get compensation for his services ; and as there was no other standard by which to regulate his compensation, the amount of the execution was necessarily adopted. These cases do not affect the construction to be given to the provisions of the Revised Statutes as to the measure of compensation where the sheriff has actually collected money on an execution. For these reasons, I am of the opinion the verdict is wrong and should be set aside, and a new trial ordered, costs to abide the event. ¡New trial granted.