Jellinghaus v. Scheidt

18 Abb. Pr. 452

Opinion

Leonard, J.

The services performed by the sheriff in this case were not such as are performed by a trustee under chapter 5, title 1, part 2, Revised Statutes, referred to in section 243 of the Code.

In this case he performed only the duties which usually devolve upon a sheriff.

In the present case the sheriff is entitled, I think, to poundage upon the sum collected, as upon an execution. Vide opinion of Judge Clerke in Muller a. Santler.

*

The opinion in the case of Trenor a. Fachin (12 Abbotts' Pr., 136; S. C., 20 How. Pr., 405), appears not to have been fully-understood, owing to the defective statement of facts" in the report.

The sheriff there collected a considerable sum from open book-accounts, due to the debtor in the attachment, in numerous small amounts, and nothing was "realized from the sale of property, or by virtue of any of the ordinary powers of a sheriff under process.

The services of the sheriff were, in that case, all rendered pursuant to the fourth subdivision of section 237, conferring new powers upon sheriffs, wholly unknown before the Code. These duties are such as were performed by trustees under the proceeding by attachment mentioned in the Revised Statutes, and are entitled to be paid for at the same rate:

Fees taxed at the rate of poundage on $4,943.01 . . $64.91

Serving copy attachment...... 2.00

Return fee . . . . „ ' . . _69

$67.60

Reported, Ante, 448.