Scott v. Shaw

13 Johns. 378

Opinion

Spencer, J.,

delivered ..the opinion of the.,courts

" The act, prohibiting the issuing .a ca¿ sa.' (1. N. R. L. 502.) upon 'judgments-rendered, .in- actions wherein'special bail has been filed,: until after’a fi. fa. does not render-a ca. sa. issued , before a fi. fa. void; it is only voidable at the. instance of the - party against whom it is thus issued.- The sheriff certainly in.- !. curred the- risk of liability for an escape on the first ca. sa., for he could not set up, in an action-against him- for an escape, that the ca¿ sa. .had issued!¡regularly the sheriff therefore, gained . -a- perfecttitle to. his-poundage, unaffected by the subsequent discharge of the prisoner." It is ’ no answer to, the' sheriff’s claim for poundage, that he has received poundage upon another judgment between the same parties, and for the same original debt; it is, legally speaking, a new debt, as far as the sheriff is concerned. The allowance of poundage is for the risk incurred, and that risk is in proportion to the amount of the sum to he levied, and as the sheriff was exposed to. two risks, ho is entitled to the poundage on both executions»