Majority
p. 378Scott against Shaw.
Headnote
t Where- $• <Iáféndant has been taken under á tu sa. and discharged • from custody on the ‘ ground that no previous' ,/?, fa. had been issued on the judgment, (there be- " ing special bail in .the action) the' sheriff is, • notwithstanding, entitled to poundage5;as he has incurred-the risk of • being made liable ifor san escape,! in án ■ ^.action for which Jie could hot have availed •himself of the • irregularity as a defence. '•Arid it makes no difference ’ -that the defend- • antafter his dischargeconfessed a new judgment to the plaintiff for the amount of the former judgment, pn which satisfaction was entered} and that a ca. sa. having '•been regularly issued óa.' the second judgment, the sheriff had been paid his . poundage thereon. '
- IK. this case,, the-question Submitted ip the court, withoiitvari .gúmenb.-was, whether Simon fleet, late sheriff of 'the city-aná county of New-York, was entitled to poundage -.on the ca, sa, iss.u.edjn this cause, under the following circumstances;: ,
: The plaintiff having recovered: a judgment against the defend-.. ant in! this cause, .in which special bail 'had,been filed, his atf torney inadvertently issued acq.sa,, when bo’¿ft.fa. had.beep previously issued and returned, pursuant to the proviso in the _7th section of the <f Act concerning judgments andexecudons/;’ _(sess. 36. c. 50, 1. N. R. L. 502.) The defendant, having been' arrested on the fa, sq. was, in'consequence of tiré irregularity,discharged from oustbdyi but without pay ingany fees.,It being apprehended that the discharge might be deemed'an extinguish-ment;.of the- judgment, .the defendant confessed-a new judgment in favour of the plaintiff for precisely the same amount as the . former, ope,. and -satisfaction of the first judgment was entered on record pro forma-,. fiat no payment .or satisfaction wasi’actually, received-, it being so expressed in the satisfaction piécé,> which was special. Upon -this new judgment a .fit fa. and.ca. sa. were afterwards regularly issued, and upon the second1' ca,» .sai the defendant was again arrested a/nd. taken'intp custody.1. The sheriff received his Ml .poundage and-, other fees-upon, the second ca, sa,, and claimed poundage and qther fees upon the' first' ca. sa,.; his . claim to caption and gaol fees was admitted, but the demand of poundage resisted. ’, <
delivered ..the opinion of the.,courts
" The act, prohibiting the issuing .a ca¿ sa.' (1. N. R. L. 502.) upon 'judgments-rendered, .in- actions wherein'special bail has been filed,: until after’a fi. fa. does not render-a ca. sa. issued , before a fi. fa. void; it is only voidable at the. instance of the - party against whom it is thus issued.- The sheriff certainly in.- !. curred the- risk of liability for an escape on the first ca. sa., for he could not set up, in an action-against him- for an escape, that the ca¿ sa. .had issued!¡regularly the sheriff therefore, gained . -a- perfecttitle to. his-poundage, unaffected by the subsequent discharge of the prisoner." It is ’ no answer to, the' sheriff’s claim
p. 379
for poundage, that he has received poundage upon another judgment between the same parties, and for the same original debt; it is, legally speaking, a new debt, as far as the sheriff is concerned. The allowance of poundage is for the risk incurred, and that risk is in proportion to the amount of the sum to he levied, and as the sheriff was exposed to. two risks, ho is entitled to the poundage on both executions»