Pritchard v. Bank of California — 51 Barb. 184

Majority

p. 184

Pritchard vs. The Bank of California. Fiske and others vs. The Same.

Headnote

Under section 243 of the Code of Procedure, jvhich provides that the sheriff shall he entitled to poundage upon the amount paid on the “settlement” of an attachment suit, the sheriff is entitled to poundage where an arrangement is made by which the defendants agree to pay certain drafts if the suit shall be discontinued, and this is done, and the money paid.

APPEAL from an order of Justice Ingraham, taxing 'the fees of the sheriff, under attachments issued in the above actions. The following opinion was given by

Ingraham, J. The sheriff, under section 243 of the Code, is entitled to poundage on the amount paid on the settlement of an attachment suit. The plaintiff held the drafts, and the attachments were issued to collect them. A settlement was made, viz. to pay the drafts if the suits were discontinued. This was done, and the money paid. That entitled the sheriff to poundage on the sum paid.

The right to poundage does not depend on the recovery in the suit, but on the sum paid to settle; and it does not alter the sheriff’s right, if the plaintiffs agree to discontinue first, in order to get their pay. The sheriff cannot be deprived of his poundage by such discontinunce.

p. 185

[New York General, Term,

January 6, 1868.

Geo. G. Barnard, Sutherland and Ingraham, Justices.

The sheriff is entitled to poundage on the amount paid to take up the drafts.

John E. Burrill, for the plaintiff.

Ira D. Shaffer, for the sheriff.

By section 243 of the Code, it is provided that the sheriff shall be entitled to poundage on the amount paid on the “ settlement of the suit in which the attachment was issued.” The word “settlement” is thus defined “act of settlement; adjustment” &c. Was there a settlement here? That there was, is as clear as the sun. The plaintiff’s' ownership of the drafts in suit is conceded, and that money, belonging to the bank, in an amount more than sufficient to satisfy the plaintiff’s demands was duly attached, is clear. The suits were not defended. They were the subject of amicable adjustment. The plan of settlement was this: discontinuance of the suits, and thus release our money from the lien of the attachments, and we will appropriate the same to the payment of the drafts. This proposition was assented to, and the arrangement proposed consummated. The amount of the drafts, without interest or costs, was paid, and Judge Ingraham has allowed poundage on the amount thus paid. The ruling of the judge was clearly right.

Orders affirmed, with costs.