Dresser agt. Van Pelt and Wicker. 3d. It is next urged, that the orders, or some of them, made upon the supplementary proceedings, were made at special term, as orders of a court, not of a mere judge vested with special powers. This question must depend as to the fact, upon the statement of the answer. That is, that the order of the 20th of September, and that of the 11th of October, (both of Justice DAVIES,) and that of the 16th of December, made by Justice CLERKE, were made by the said justices "while sitting at special term, and also at chambers." The case of The Knickerbocker Bank (19 Barbour R. 602) furnishes an answer to this objection. Let it be assumed that the title of the order was at special term, and that it was made while the judge was actually engaged in a trial, in an interval of it. The case is amply sufficient to show that such a technicality, so destitute of all justice or substance, cannot prevail. 4th. It is next insisted that the order of Justice CLERKE of the 16th of December, 1856, was void, because it directed the sheriff "to bring the party before one of the justices of the court, at a special term of the court to be held, at &c., on &c." The place, the day and the hour are sufficiently designated. In the case of Henry D. Smethurst, in this court, (2 Sandf. R. 724,) upon habeas corpus, Justice HARRIS had made an order in a supplementary proceeding. The party appeared, and the examination was partly had. Upon his refusal to proceed, an attachment was issued by which the sheriff was to have the party, before the judge, at his office in the city of Albany, on a certain day. The objection was made that the attachment was void on this ground. It should have been at special term. (2 R. S. 534.) Justice MASON held, after referring to section 302 of the Code and the Revised Statutes, that the latter vested the power of punishing only in courts of record, and attachments necessarily were returnable before the court. A judge under the Code had the power and could not exercise it, unless the party was brought before him. No power was given to the court Dresser agt. Van Pelt and Wicker. to punish for the contempt of the order of the judge. The objection was overruled. There is no reason to conclude from this case, that had Judge HARRIS'S attachment been returnable before himself at special term in the capitol or city hall at Albany, on the day fixed, it would have been held void. The point was that the party was to be brought, not before a court but before a judge. In what place, or position of duty that judge was then found, if time and place where he was to be found are specified, does not seem material. This idea followed out and applied to the present case, (as it is stated in the answer,) appears to us to govern it. The order of Justice CLERKE, of the 16th of December, for the attachment, was by him as a justice, not as the court. The writ of attachment was signed by the said Justice CLERKE, and attested by the seal of the court. When such a writ is process by the court, it is witnessed in the name of the chief or presiding justice, and attested by the clerk. The subsequent commitment was by the said Justice CLERKE, sitting as aforesaid, that is, "at special term and not at chambers." In short, no act or order was formally made, or directed or intended to be made, or by necessary construction made, or to be made by the court. The fair legal construction, as well as the plain good sense of the whole of these proceedings, is this. The orders and process were made and allowed by a judge acting under a statutory power delegated to him, and in the first circuit to any judge who could act in his place for the continuing the proceeding. There is plainly nothing done by a court, which was referred to a court to be done, or which could only be done by a court. The officer had jurisdiction in every instance, of every order and every process, through these proceedings. His exercise of the power when even sitting in court, could not rob his act of its legal character. He had the capacity to do the act, at any place which he had distinctly prescribed. It would be trifling to say, that his fixing it to be done, when he or another judge Pratt and others agt. Conkey. who could perform it, was sitting at a special term, should render it utterly void. Therefore, when the judge directing the process to issue, has jurisdiction, when any judge of the same court who is found at the place designated, on the day specified, has jurisdiction, when place and time are distinctly pointed out, the mere fact that the party is to be brought before the judge when holding a court at special term, does not render the proceeding or process void. The order of special term overruling the demurrer to the answer, must be affirmed, with costs. SUPREME COURT. SAMUEL M. PRATT and others agt. THEODORE CONKEY. In an action for the recovery of money, where an attachment has been issued, the plaintiff is not entitled to recover an extra allowance upon his demand, under § 308 of the Code, where the defendant has, before judgment, tendered the amount of damages and costs then due the plaintiff. It is only upon the recovery of judgment that the plaintiff is allowed an additional per centage. And where the defendant, in an action of this kind, has made a tender before judgment, the plaintiff cannot proceed to judgment so as to entitle himself to such extra allowance. (See Thurston agt. Marsh, 14 How. 572.) Erie Special Term, July, 1857. APPLICATION for the per centage allowance of costs under section 308 of the Code as recently amended. The action was for the recovery of money. An attachment was issued, and the property of the defendant was attached. The defendant appeared, and upon giving bond, the property was released, and before judgment was recovered, he tendered the sum to which the plaintiff was entitled for damages and costs, other than the per centage, as specified in section 308 of the Code as amended by the act of April 17, 1857. The plaintiffs insisted Pratt and others agt. Conkey. that they were entitled to the per centage, and the defendant, that they were not so entitled, as there had been no recovery of judgment. The question was submitted by stipulation. BOWEN & ROGERS, for plaintiffs. L. LOCKWOOD, for defendant. MARVIN, Justice. In my opinion, the plaintiffs have no right to the per centage claimed. The action was for the recovery of money. By section 308, before the recent amendment, the court was authorized to make an allowance in certain cases, among which, were those in which a warrant of attachment had been issued. As now amended, the per centage is given without any application to the court. But when is it given? under what circumstances? The allowance might be made by the court "upon the recovery of judgment," and the same qualification or limitation still remains in the section as amended. It is then only "upon the recovery of judgment," that the plaintiff is entitled to an additional allowance by way of per centage. In New York Fire &c. Insurance Co. agt. Burrell and others, (9 How. Pr. R. 398,) an extra allowance was given in a mortgage foreclosure suit when a tender had been made before judgment. The learned justice took that case out of the provisions of the Revised Statutes relating to the tender before trial, in actions at law, of the plaintiff's demand with the costs. (2 R. S. 553.) Without remarking upon that case, it is enough to say it is not applicable to the present case. Here the action was for the recovery of money only, and I can see no good reason why this provision of the Revised Statutes does not apply. It is clear, so conceded in the case cited, that the plaintiff cannot have the allowance unless he has obtained judgment. Suppose the defendant immediately after his property is attached, desires to pay the demand and costs, should he not be permitted to do so? Can the plaintiff say you must pay the per centage, or I will proceed to judgment, and retain the Banks agt. Van Antwerp and wife. property attached? I think he cannot do this. By § 322, it is provided that upon the settlement before judgment, of any action mentioned in § 304, no greater sum shall be demanded as costs, than at the rates prescribed by that section. The present action is one of those mentioned in § 304. It may be said that a defendant can never compel a settlement of the action; and this may be so, but if the provisions of the Revised Statutes referred to, remain in force, he can protect himself by a fender from any further liability to pay interest or costs. In my opinion, the plaintiff is not entitled to a per centage upon the demand, except "upon the recovery of judgment," and in a case like the present he cannot entitle himself to the per centage by proceeding to judgment. SUPREME COURT. DAVID BANKS agt. PETER VAN ANTWERP and wife. In an action to foreclose a mortgage of $3,000, after nine years of regular payment of interest, the defendant interposed the defence of usury on this wise: That the bond and mortgage were dated on the 1st of August, 1846, but were not, in fact executed, nor the principal sum of money borrowed, received by defendant, until the 24th of August aforesaid; and that the plaintiff did thereby reserve to himself, for the loan, fourteen dollars above the lawful rate. The question was, whether such a transaction (the money, probably, during the time, being set apart in bank for the loan), one of every day occurrence, not in Wall street, but among legal conveyancers, constituted in law a misdemeanor, or in other words, usury. Held, that the legislature of 1837, whatever may have been their views of public policy, did not intend to enact an absurdity, not to say atrocity, such as the present defence implied. Judgment for plaintiff, with costs. New-York Special Term, November, 1857. ACTION Commenced for the foreclosure of a mortgage, to which was interposed the plea of usury; which the answer declared consisted in the following state of facts: That V. A., |