Calhoun agt. Lee.

BALCOM, J. It appears that the attachment issued by me in this cause to the sheriff of the county of New York, was served by attaching the defendant's interest as a stockholder in the Black Hawk Gold Mining Company of the city of New York. I issued another attachment in the cause to the sheriff of Broome county, and that sheriff attached property that belonged to the defendant, or that the plaintiff alleged belonged to him. The entire demand. of the plaintiff was $3,434.94, but after the above mentioned attachments were served, the plaintiff compromised his demand against the defendant for $2,683.81.

same.

The sheriff of New York county now claims that he should be allowed a compensation as fees or poundage, or otherwise, for serving the attachment issued to him, amounting to the sum of $48.22, and I am asked to adjust the He is entitled to the following fees for serving the attachment, viz.: Fifty cents for the service (2 R. S. 646, 38; Code, § 243); for a copy of the attachment nineteen cents, and for returning the attachment twelve and a half cents (see same authorities). His compensation or fees are prescribed by the Revised Statutes (see Code, § 243). If he had taken possession of any property by virtue of the attachment, he would be entitled to such additional compensation over and above his prescribed fees, for his trouble and expenses, as I should certify to be reasonable (2 R. S. 646, § 38). But he did not take possession of or preserve any property by virtue of the attachment. All he did was to leave a certified copy of the attachment with an officer of the mining company, and receive a certificate from him. showing the defendant's interest in the company (Code, §§ 235, 236). It is not, therefore, within my discretion to allow him a compensation over and above his fees, on the ground that the same would be reasonable.

A sheriff cannot be allowed an additional compensation for executing an attachment, over and above his prescribed fees, unless he is put to trouble, or incurs expenses in

Calhoun agt. Lee.

taking possession of, or in preserving the property attached. For the statute on the subject does not authorise such a compensation for any trouble he may be put to or expense he may incur, in any other manner, in executing an attach ment. Where the property attached shall be sold by the sheriff, the statute is that he shall be entitled to the same poundage on the sum collected as if the sale had been made under an execution; also for selling any property so attached, and for advertising such sale, the same allowance as for sales on executions (2 R. S. 646).

When a levy is made by a sheriff by virtue of an execution, he is entitled to poundage if the plaintiff settles his judgment and withdraws the execution before a sale (see Bolton agt. Lawrence, 9 Wend. 435). But that principle is not applicable to this case, for the reason that the sheriff of New York county did not attach any property he could sell by virtue of the attachment. The interest of the defendant in the Black Hawk Gold Mining Company, could only be sold after judgment, by virtue of an execution. It is only perishable property and vessels, and shares or interests in vessels that may be sold by the sheriff by virtue of the attachment, before judgment, pursuant to an order of the court (Code, §§ 233, 237). And it follows that the sheriff of New York county is not entitled to poundage for anything he did in executing the attachment issued to him in this cause.

I have not deemed it expedient to comment on the conflicting decisions upon the questions I have discussed. All I need say is that they are decisions that were made by single judges at special terms, and I do not feel bound to follow them where my conclusions are not reconcilable with them. In this case the sheriff of New York county will not receive an adequate compensation for the service he rendered. But he must be content, for the reason that there are times when he receives a large compensation for slight services.

Howard agt. Farley.

My conclusion is that he is only entitled for his services in this cause to the fees specified in the Revised Statutes, which I have mentioned, amounting to the sum of eightyone and a half cents.

NEW YORK SUPERIOR COURT.

HESTER MARY HOWARD agt. TERENCE FARLEY, and otners.

In an action on a money bond (secured by mortgage) for the penalty, by reason of default in the payment of a half year's interest-the principal not yet due-the defendants served an offer under section 385 of the Code, to allow the plaintiff to take judgment for the condition of the bond with the interest due, besides the costs of the action, which offer was not accepted by the plaintiff, and on the trial she recovered judgment for the amount of the interest only-the court deciding that the plaintiff could not under the Code, have judgment for the penalty.

Held, that the plaintiff obtained a more favorable judgment than the defendants' offer, which entitled her to the costs of the action. For by accepting the defendants' offer she would have been bound to discharge the bond and mortgage not yet due, and reinvest her money at a probable loss of interest and expense.

Special Term, March, 1865.

THE Complaint in this action alleged the making of a bond by the defendants, in the penalty of $7,600, conditioned to pay $3,800 on the 21st of May, 1865, with interest payable half-yearly. The complaint further alleged that a half-year's interest became due on the 21st of November, 1863, which remains unpaid, whereby the defendants became liable to pay to the plaintiff the sum of $7,600, the penalty of the bond. The defendants denied the right of the plaintiff to take judgment for the penalty, and insisted that it should be for the condition, and with their answer gave the plaintiff an offer, under section 385 of the Code, to allow judgment to be entered for $3,800, with interest from May 21, 1863, and additional interest on $133, from November 21, 1863, besides the costs of the action. The offer was not accepted. On the trial, the plaintiff obtained a judgment for $133 only, the court deciding that

Howard agt. Farley.

the plaintiff could not have judgment for the penalty. The clerk refused to tax any costs to the plaintiff, except "for proceedings before notice of trial." The plaintiff

appealed.

GOUVERNEUR TILLOTSON, for plaintiff.

Adolph LevingER, for defendants.

MONELL, J. The defendants' offer was to allow judgment to be entered for the whole sum secured by the bond, and if the plaintiff failed to obtain a more favorable judgment, he cannot recover costs, but must pay costs to the defendants from the time of the offer. The demand of judgment for the penalty of the bond was through an error of the plaintiff's counsel in supposing that the old action of debt on bond was not abolished by the Code. The plaintiff did not claim to collect the penalty, but claimed that the judgment should be in form for the penalty as in the old action of debt. In that case execution could issue to collect such sum only as was due by the condition of the bond-in this case six months' interest. The principal sum secured by the bond in suit will not become due until the 21st of May, 1865, and the plaintiff is not obliged, nor can she be compelled to receive it before maturity. The bond is presumed to be well secured by a mortgage on real property. The acceptance of the offer to allow judgment would have required a judgment for the amount stated in the offer, and it could not have been for any less sum. The judg ment being entered, the defendants could pay the amount and thus satisfy the bond, and claim a discharge of the mortgage. Such a judgment cannot be said to be more favorable than such as the plaintiff has obtained. It would compel the plaintiff to receive the principal before due, and deprive her of a good investment of her money. The amount of the judgment is not the only test. Capitalists, whose means are invested in bond and mortgage, are usu

Niver agt. Niver.

ally reluctant to receive the principal until due. There is a liability to lose interest, and another investment must be found.

Under these circumstances, I think the judgment the plaintiff obtained was more "favorable" than the offer, and, consequently, she is entitled to recover the costs of the action.

SUPREME COURT.

ELIZABETH NIVER agt. DAVID M. NIVER.

Where the gravamen of a complaint is the wrong and injury done to the plaintiff's property by the defendant, containing but one count, although it contains therein an allegation that the rights and interests of the parties in the action under the will of their father, be adjudged and determined, it is a case which comes within the provisions of the Code (§ 179), and on a verdict and judgment against the defendant, renders him liable to imprisonment on a Ca. Sa.

Albany General Term, December, 1864.

Before PECKHAM, MILLER and INGALLS, Justices.

THIS is an appeal from an order at special term refusing to set aside a Ca. Sa. against the defendant.

A. B. VOORHEES, for the motion.

IRA SHAFER and I. LAWTON, opposed.

By the court, PECKHAM, J. The motion is made upon the ground that the defendant is not liable to be imprisoned upon an execution in this case. The complaint is for a wilful and wrongful injury to plaintiff's property, which she obtained under the will of her father, and for wrongfully and wilfully depriving her of the use of certain parts of such property. The complaint sets forth the will of her father, the injuries complained of, and then asks that the rights and interests of the parties to this action under said will (the defendant, her brother, being a devisee