
    ALBURTIS a. DUDLEY.
    
      Supreme Court, First District;
    
      At Chambers, July, 1861.
    Costs of Attachment.
    
    On an attachment under the Code, if the attached property is not sold, the sheriff is not entitled, as matter of right, to poundage.
    
      He cannot tax in such case, as matter of right, more than eighty-two cents.
    Five dollars for levying, and two dollars per day for keeper's fees, is ample reasonable compensation for the sheriff's services, in those respects, in executing an attachment.
    
      So held, where the property attached was personal, and nothing appeared showing that the sheriff was put to any trouble or expense, further than sending a subaltern to the store to take and remain in charge; and it did not appear that there was any difficulty in finding or getting possession of the property.
    Question of sheriff’s fees submitted to the court.
    The facts are stated in the opinion.
    
      
       In Gelpeck a. The Leather Cloth Compahy (Supreme Court, First District, General Term, November, 1857), the question whether, in an action in which a warrant of attachment has been issued, if the action is settled before judgment upon an agreement to pay the debt and costs, the plaintiff is entitled to the allowance prescribed by § 308 of the Code, in addition to the regular costs. The facts of the case were, that the action was on contract, and a warrant of attachment was issued in it, under which about 86,000 worth of goods were attached. Before trial, the action was settled, the plaintiffs retaining about $4,000 worth of the attached property, and the defendant agreeing to pay taxable costs.
      The plaintiff applied at special term for an extra allowance of $60, under § 308 of the Code, which was granted. The defendant appealed.
      
        Charles Judson, for appellant.
      
        Bernard BodTcer, for respondent.
      After full argument, the order was affirmed by Mitchell, Clerkb, and Peabody, JJ.
    
   Barnard, J.

—In this case an attachment was issued against the property of defendant, pursuant to the Code, for $4,238, and property belonging -to defendant was attached thereunder. After the sheriff had been in charge for four days, the property was bonded. The sheriff refused to deliver up the property unless the bill of $70.79 was paid.

The items comprised are:

Service of attachment ."..........$ 0.69

■“ copy and notice..........2.00

Compensation (for poundage).........56.10

Four days’ keeper’s fees, $3.........12.00

$70.79

The 243d section of the Code (under the title of Attachments) provides, “ The sheriff shall be entitled to the same fees and compensation for services, and the same disbursements under this title, as are allowed by law for like services and disbursements, under the provisions of chapter 5, title 1, part 2, of the Revised Statutes.” Section 33, title 3, chapter 10, part 3, Revised Statutes, vol. 3, p. 924, 4 ed., provides for the fees and charges of sheriffs. One of these provisions is as follows: “For serving an attachment against the property of a debtor under the provisions of chapter 5 of the second-part, or against a ship or vessel under title 8, chapter 8, part 3, fifty cents, with such additional compensation for his trouble and expenses in taking possession of and preserving the property attached as the officer shall certify to be reasonable; and when the property so attached shall afterwards be sold by the sheriff, he shall be entitled to the same poundage on the sum collected, as if the same had been made under an execution.”

It is evident that unless the attached property be sold, the sheriff is not entitled, as matter of right, to the poundage.

This (no sale having been” made in this action) disposes of the third item of the bill. By the terms of this provision of the Revised Statutes, fifty cents is all the sheriff, in case the property be not sold, can claim as matter of right; all further compensation depends upon what shall be certified by the officer issuing the warrant to be reasonable.

But there are two provisions of this 33d section which may -possibly allow the sheriff, as matter of right, the further sum of thirty-two cents. I refer to the provision allowing twelve and a half cents for returning a writ, and to the provision allowing nineteen cents for a copy of a writ. As these amounts are so. small, I will not take time to inquire whether the sheriff is entitled to them as matter of right or not, but shall assume he is.

I shall, therefore, hold in this, and in all. similar cases, that .the sheriff can tax, as matter of right, only eighty-two cents.

The remaining question to be disposed of is, what sum ought to be certified as a reasonable compensation for the trouble and expenses of the sheriff in taking possession of and preserving • for four days the property attached. As the warrant was issued by me, I am. the proper officer to give the certificate. The property attached was personal—nothing appears showing that the sheriff was put to any trouble or expense further than sending a subaltern to the store to take and remain in charge. It does not appear that there was any difficulty in finding, or when found, getting, possession of the property, conceding that a deputy-sheriff went in the first instance with his subaltern and attachment, and put the man in charge. I think $5 would be ample compensation for that service, and $2 per day is ample compensation for a man simply taking charge of and watching the property, which certainly requires no extraordinary skill or talents. .

The bill is therefore taxed at $13.82,—82 cents as matter of right, and $13 certified to be a reasonable compensation for the trouble and expenses of taking possession of and preserving the property attached.  