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ALBANY,
Auguft 1803.

Hildreth
V.

Ellice.

this decision was made, and our act correspond in every essential part, as to the plaintiff's right to poundage. Our act regulating sheriff's fees says, " serving an execution for, or under 250 dollars, two cents and four mills per dollar, and for every dollar more than 250 dollars, one cent and two mills." But in order to guard against the sheriff's, taking poundage, for the sum contained in the body of the execution where the judgment is upon a penalty (as in the present case) or where he is not able to find property sufficient to satisfy the execution, the act further declares, "The poundage on writs of fieri facias, and all other writs for levying monies, to be taken only for the sum levied." The true construction to be given to the act, I think is, that where the sheriff proceeds to sell, he is entitled to his poundage only on the sum actually raised. And whereever the plaintiff interposes, and a compromise takes place, he is entitled to poundage on the sum realized by the plaintiff, or that might have been collected from the property levied on. To say that a sheriff should be entitled to no poundage where a compromise takes place, would be manifestly unjust. He may have incurred all the risk and responsibility, for the safe keeping of the property, and it will then be in the power of the parties to deprive him of compensation for it. It may be said, there is no risk where the levy is on land, this may be true; but it is observable, that perhaps in nine tenths of the cases, the money on executions is raised out of personal property, and the act makes no distinction. Suppose on the very day of sale, and before the vendue commences, the defendant should pay the sheriff the money, would he not be entitled to his poundage? and I can see no material distinction, whether the money be paid to the plaintiff or the sheriff, in that stage of the business. Cases no doubt may sed, where the sheriff will receive more than a valuable conbe supposideration for his services. But I think much less injustice will be done by adopting the rule I have laid down, than to say the sheriff shall be deprived of all his poundage wherever a comprimise takes place.

Livingston, justice. I cannot concur in the opinion just given. It is only on the service of a fieri facias, that the

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sheriff is entitled to poundage, and as the service is not complete until an actual sale of the property, he cannot until then have any right to this fee. Nor is there any greater hardship in this, than in countermanding a writ against the person before service, in which case the officer loses his fee, altho' he may have been several times to the defendant's house to arrest him. Unless the legislature have by expressions not to be misunderstood, allowed poundage in cases of this kind, we should refuse it, as it will lead to great oppression, and the reward in many cases will be very disproportioned to the service. An angry plaintiff may instantly after judgment issue an execution for no other purpose than exposing the defendant to this expence, although he may have every reason to believe that the latter intended shortly to pay the debt.

This he would be under no temptation of doing, if the defendant at any time previous to a sale could protect himself against this charge. But it is thought hard to permit the partner to settle after lands have been seized, without paying the sheriff his whole poundage. This supposes the seizing of land, or taking them in execution, to be a work of immense labor and trouble. The truth is, that lands are often advertised without the sheriff or his deputies ever seeing them, and the trouble of an actual seizure consists only in riding to the lands and proclaiming that he takes them in execution. And yet, for this paltry service, not equal to that of arresting the person, he may be entitled, on a heavy judgment, to a most enormous reward. If we do not make the proceeds on an actual sale, our only guide in estimating poundage, how shall we ascertain, the value of the property seized; or who can say, that on a second sale that value would have been produced; and if we allow the sheriff poundage here, as a quantum meruit for his trouble, why not give it to him if he seizes land by the plantiff's direction, which, as is often the case, appear in the sequel not to belong to the defendant, or to be previously encumbered to its full value.

Having then little, if any doubt as to the intention of the legislature, who appear to have expressed themselves with great circumspection, not only by restricting the claim of

ALBANY,

August 1803.

Hildreth

v.

Ellice.

ALBANY,
Auguft 1803.

Hildreth

V.

Ellice.

All damage immediately arifing from a jettison is to be contributed for, though it happen to perishable arti

cles, which are

enumerated in

the memorandum, and re

mainin specie. Freight and

veffel are to be

eftimated in a general ave

rage, as they then are.

poundage to the actual service of an execution, but by declaring that it shall be taken only for the "sum levied," or in other words, the sum actually made or brought into court, I think the sheriff not entitled to poundage for the lands taken by him, on the execution issued in this case. case in 5. T. Rep. 470. it is sufficient to say, that it is not Of the binding on us, and that the reasoning of the court neither satisfies me of the propriety of the thing, or that we have the power to make a provision for sheriffs different from that prescribed by the legislature.

Maggrath and Higgins against John B. Church. THIS was an action on a policy of insurance, in which, on a special verdict, the following facts were found.

"That Le Roy, Bayard and M'Evers, of New-York, as agents for the plaintiffs, who were merchants in Madeira, by a policy of assurance, dated the 10th of September, 1798, insured 5414 bushels of Indian corn, 4000 pipe staves, 4000 hogshead staves, and 2500 quarter cask staves, from New-York to Madeira, on board the snow Ann and Mary, Peter Murphy, commander. That the prime cost of the corn was 2982 dolls. 98 cts. of the pipe staves, 170 dolls. 31 cts. of the hogshead staves, 95 dolls. 50 cts. of the quar ter cask staves, 31 dolls. 12 cts; that the freight for the corn was to be 550 pounds sterling, for the staves, 148, pounds, and that the plaintiffs had an interest on board, to the amount covered by the policy. That there was a memorandum in the policy, by which it was agreed that salt, grain of all kinds, Indian meal, and all other articles perishable in their own nature, should be warranted by the assured free from average, unless general. That the vessel, being well fitted for sea, sailed on the voyage insured, on the 17th of the same month; on the 21st, encountered squally weather and heavy seas, which continued till the 26th of the same month, when, about 1 o'clock P. M. the wind blowing violently, suddenly chopped round from E. S. E. to W. N. W. and laid the vessel on her beam ends, in which situation it became necessary for her preservation, and that of the cargo and crew, to cut away the mainmast. That in doing

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this, it splintered off at, and below the partners, tearing away the piece of cloth called the coat, which is nailed to the deck and mast, for the purpose of keeping the water from running into the hold. That in consequence of this, as the sea made a free passage over the snow, a vast quantity of water continued to rush into the hold till the stump of the mast was cut off, and a new coat nailed over it. That this occupied about an hour and a half, when there were found four feet water in the hold, though one pump was continually going, the other having been carried away in the fall of the mast, and totally disabled. That the vessel labouring much with a heavy sea, it became necessary, on the 27th, to ease her, by throwing overboard about half the staves, which was accordingly done. That the weather having moderated, the snow was found to be in so disabled a situation, that she was obliged to bear away for the nearest port, three of the crew being crippled and sick, and the captain's leg very much bruised. That, on the thirteenth of October following, the vessel got into the Capes of Delaware, and on the seventeenth of the same month, arrived. at New-Castle. That there were not to be procured there, any stores to unload the cargo, nor any assistance to obtain repairs, and that the yellow fever then raged both at Wilmington and Philadelphia. That on the 25th or 26th of the same October, Le Roy, Bayard and M'Evers, received information of the vessel's being at New-Castle, and of all the antecedent circumstances, which they instantly communicated to the underwriters, and abandoned. That the vessel lay at New-Castle till the yellow fever abated, and on the 30th of October, went up to Philadelphia. That on the abandonment, it was agreed that Le Roy, Bayard, and M'Evers, should send a clerk to New-Castle, to take charge of the cargo belonging to the plaintiffs, for account of whom it might concern, without prejudice to the rights of either party. That the vessel arrived at Philadelphia on the 30th of October, the day she left New-Castle. That, on unlading the cargo, it was found so damaged as to be wholly unmerchantable, and that all the damage sustained by the torn, was occasioned by, or in consequence of the cutting away the mast, which was done for the preservation of vessel, car

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ALBANY,

Maggrath and
Higgins

John B Church

Auguft, 1803. go, and crew. That the articles insured, excepting such as were ejected, were, by consent of parties, sold at Phila delphia, for the benefit of those who might be concerned, and produced, after deducting charges, 924 dollars, which sum was paid to the owners of the vessel, for freight, in pursuance of an award made by arbitrators chosen for that purpose, but the defendant was not a party to the submission. That the Ann and Mary was repaired at Philadelphia, and ready to take in a cargo on the 28th of November, but as no corn of the kind of that before purchased, could be obtained, it being flint Jersey corn, the voyage was given up, and the vessel returned to New-York."

It was agreed that if, in estimating the general average, the freight of the cargo to Madeira, ought to have been taken into account, and not the freight actually paid at Phila delphia only, then an alteration to be made accordingly in the sum to be recovered; and, that if the assured were not bound to look to the owners of the vessel, for the propor tion to be borne by the vessel, and freight, then the loss to be considered as total.

On the preceding facts and agreement, a case was reserved for the opinion of the court, whether the underwri ters were liable in any, and what degree?

In a former trial on the same policy, in which Le Roy, and Co. were plaintiffs, the abandonment was, by the special verdict then given, found to have been made whilst the vessel lay at Philadelphia, where she could have been repaired for less than half her value, and the question at that time agitated between the parties was, whether the corn being damaged more than one half of its value, was sus ceptible of abandonment, and the underwriter responsible; or whether he was protected by the words of the memorandum? It was contended that he was not, because they ap plied only to average losses, and not to those which were,, like the present, total.

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In support of this idea, the authority of the French writers was relied on, but the bench decided, if the subject insured be in existence, there cannot be a recovery.

However, there being still an average, occasioned by the jettison, for which the assurer was bound, it became

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