Parsons v. Bowdoin — 17 Wend. 14

Majority

p. 9

Parsons vs. Bowdoin.

Headnote

Where property is levied upon hy a sheriff hy virtue of an execution, and the judgment is subsequently satisfied hy an arrangement between the parties to the process, the sheriff is entitled to his poundage, notwithstanding that the property levied upon was covered with liens previous to the judgment to an amount exceeding its value,^[1]

This was an action of assumpsit, tried at the Monroe circuit in May, 1835, before the Hon, Addison Gardiner, one of the circuit judges.

p. 10

This suit was brought by the plaintiff as sheriff of the county of Monroe, to recover the poundage and other fees upon a ji. fa. issued by the defendant attorney for the plaintiffs in the execution. The amount directed to be levied was about §4,200 with interest. The execution came to the hands of the sheriff in the early part of August, 1833, and he was directed to levy on a mill in the possession of the defendant. The sheriff levied accordingly and advertised the property for sale. On the 25th September, the plaintiffs by an arrangement with the defendant, accepted for the debt the note of a third person, and assigned to him the judgment. About a week previous to the day appointed for the sale of the mill, the sheriff received a letter from the attorney informing him that the debt had been arranged, directing a stay of proceedings on the execution, and requesting the amount of the fees to be forwarded. The fees were for poundage, $56"55; and for advertising property, &c., $8-39. The defendant proved that there were incumbrances upon the property levied upon, anterior in date to the judgment, to an amount exceeding its value. The judge charged the jury that the property being thus incumbered, the plaintiff was not entitled to recover the charge for poundage, and was only entitled to recover the residue of his charges. The jury found accordingly. The plaintiff moved for a new trial.

S. Stevens, for the plaintiff.

J. Ten Broeck Van Vechten, for the defendant.

By the Court,

The attorney directed the sheriff on what property to levy; the levy was made in pursuance of his instructions, and the property was of sufficient value to satisfy the execution. The creditor afterwards arranged the matter with the debtor—taking the notes of a third person for the amount of a judgment—and ordered the sheriff to proceed no further. In such a case, I think the sheriff entitled to poundage on the whole sum directed to be levied; and that it was no answer to the claim to show that the property would probably have brought little or nothing if it had been sold. It is unnecessary to consider what would be the rights of the sheriff if he had not been particularly instructed as to what he should do, or if the judgment had not, in effect, been satisfied. The eases of Hildreth v. Ellis, (1 Caines, 192), and Bolton v. Lawrence (9 Wendell, 435), go far enough to decide the one under consideration.

New trial granted.