Opinion of the Court, per RUGER, Ch. J.

vided are those for "collecting" the moneys called for by the execution, and the fees are computable only upon the amount "collected," and are made collectible by virtue of the execution alone.

To bring the claim of a sheriff within the provisions of the statute, it is essential that he show either the collection of the moneys called for, or some interference by the plaintiff with his execution of the process that is equivalent thereto. It has been uniformly held in England as well as in this country, under all statutes giving fees to sheriffs upon executions, that a judgment creditor cannot, after placing process in the hands of the officer and inducing him to move forward in the work of executing it, interfere to prevent its enforcement without thereby making himself liable for the compensation of the sheriff. (Alchin v. Wells, 5 Term R. 470; Hildreth v. Ellice, 1 Caines, 192; Campbell v. Cothran, 56 N. Y. 282.) These cases proceed upon an obvious equity, analogous to that underlying the familiar principle which debars a party to a contract from claiming the benefit of the non-performance of a condition precedent by the other party, where he has, by his own conduct, made performance thereof by such party impossible.

The question presented by this appeal seems to us to be one purely of statutory construction, and, in the absence of prior adjudication, would appear to be easy of solution. But it is contended by the learned counsel for the appellants that the logic of the cited cases supports the claim now made by them and entitles them to a reversal of the judgment appealed from.

Although in the early case of Pope v. Hayman (Skirner, 363), arising under the act of 29 Eliz., the subject is mentioned argumentatively by counsel, yet, aside from that case, we have been referred to none arising under any statute which seems to support the doctrine that a sheriff becomes entitled to poundage on an execution upon the death of a defendant held in custody thereunder, or that he is entitled to such poundage in any other event than the collection of the debt, the release of the debtor with the consent or by direction of the plaintiff, or his

Opinion of the Court, per RUGER, Ch. J.

discharge under the provisions of the act for the relief of imprisoned debtors.

We are, therefore, unembarrassed by any prior decisions covering the particular question presented by this appeal, and we may well consider their absence a fact militating against the plaintiff's claim, since the question is one which must frequently have occurred in the history of the law relating to imprisoned debtors. A number of cases have, however, been referred to by the appellants which are claimed to support their demand. We believe the cases cited have but a remote, if any, bearing upon the question here presented, and their soundness may be conceded without impairing the considerations which induce the determination of this case. Without considering all of them in detail it may be observed that they generally arose under statutes essentially different from that under consideration, and were mainly decided upon the language of the particular statute under which they respectively arose. In Adams v. Hopkins (5 Johns. 252) two propositions were announced, viz.: first, that the plaintiffs' attorney was liable to the sheriff, for the fees earned by him, in serving an execution against the defendant's person, and, second, that the sheriff was entitled to the statutory fees, when, after execution of process, the defendant had been discharged from imprisonment under proceedings for the relief of imprisoned debtors.

The right of the sheriff to fees in this case was based upon the express language of the statute then in force. (2 R. L. 77.) Mr. Justice THOMPSON, delivering the opinion, saying: "The sheriff by the statute of Elizabeth, and by our act, is to have his fees for serving an execution." It may be doubted whether the second proposition decided would be considered applicable to a case arising under the Revised Statutes. In Scott v. Shaw (13 Johns. 378) the only question considered was whether the sheriff was under the then statute entitled to fees upon a ca. sa. duly executed by him, although it was afterward set aside upon motion for irregularity, because a fi. fa. had not previously been issued and returned nulla bona as required by the statute. It was held that by the service of the

Opinion of the Court, per RUGER, Ch. J.

process, the sheriff became entitled to his fees. The statute in this, as in the previous case, gave the fees for the service of the execution, and that service was held to have been performed, so far as to fix the plaintiff's liability for sheriff's fees, when the body of the defendant was taken upon execution.

None of the English cases seem to support the doctrine of this case, and it can be sustained only upon the ground that the language of the statute established the sheriff's right to fees when he had commenced the execution of the process. In each of the early English cases of Earle v. Plummer (1 Salk. 332), Rawstorne v. Wilkinson (4 M. & S. 256), Bullen v. Ansley (6 Esp. 111) the sheriff had fully executed the writ and paid over the money collected. It was held in those cases that he thereby became entitled to poundage, although the writs were subsequently set aside for irregularity. These cases afterward came under review in the case of Miles v. Harris (104 Eng. C. L. Rep. 550), in the Court of Common Pleas, upon the question reserved for the opinion of the court, whether the sheriff was entitled to poundage upon an execution when he had seized goods thereon sufficient to satisfy it, but such execution was afterward set aside for irregu larity. It was held that he was not entitled to poundage, ERLE, Ch. J., saying: "Inasmuch, therefore, as no money was made by him under the execution, I think he was not entitled to claim poundage." This opinion was concurred in by the whole court, consisting of the justices WILLIAMS, WILLES and BYLES.

To similar effect was the decision of the Exchequer Court in the case of Evans v. Manero (7 M. & W. 463), and Rex v. Robinson (2 C. M. & R. 334). In Ryle v. Falk, reported in 24 Hun, 255, and affirmed in 86 N. Y. 641, by this court upon the opinion in the court below, it was held that the sheriff was entitled to his poundage upon a ca. sa. where the plaintiff had consented to the discharge of the defendant, upon the condition of his paying the sheriff's legal fees, charges and expenses. The principal question involved in that case was whether the plaintiff could interfere by directing a discharge after the de

Opinion of the Court, per RUGER. Ch. J.

fendant was taken in execution, and thus preclude the sheriff from collecting the statutory fees, or in other words, whether any thing but the actual collection of the money called for by the process would entitle the sheriff to his poundage. This case was undoubtedly correctly decided upon the ground that the direction of the plaintiff was equivalent to the collection of the judgment, and the case was thereby brought within the meaning and spirit of the existing statute. The plaintiff had the right to control the execution of the process, and to impose such conditions upon the discharge of the defendant as he chose, and the defendant could not have the benefit of the stipulation without complying with the conditions upon which it was given. In Campbell v. Cothran (56 N. Y. 279), a fi. fa. had been issued to the sheriff upon a judgment for $4,328, and he had levied upon sufficient property to satisfy it. Upon appeal the judgment had been reduced to the sum of $60.20, and it was held that the sheriff was entitled to poundage upon the amount of the modified judgment only. This case was decided by the court upon the ground that under the statute the sheriff was entitled to poundage upon the sum collected only. In Konig v. Steckel (58 N. Y. 475), it was held that a judgment creditor could not maintain an action against the sureties upon a bond given for the payment of the judgment so long as he detained the debtor by imprisonment upon a ca. sa. issued on such judgment. It was said in effect that the imprisonment operated pro tempore as an extinguishment of the defendant's liability for the debt, and that the defense accruing to the principal from that fact would also inure to the benefit of his sureties.

We have not omitted to observe the language used by the courts in many of the cases referred to, to the effect "that the allowance of poundage is for the risk incurred," or "for the sheriff's trouble."

If these expressions were used in the sense that the sheriff became entitled to poundage whenever he had incurred risk in the service of process, they are manifestly incorrect, for there are many decided cases where such risks have been incurred,

Opinion of the Court, per RUGER, Ch. J.

and yet his right to poundage has been denied. Such for instance are the cases where the judgment has subsequently been modified or reversed, or where the execution has been set aside or reduced by the order of the court before collection. (Impey on Sheriffs, 159; Campbell v. Cothran, supra; Miles v. Harris, supra; Evans v. Manero, supra.)

This is so also when the property is taken by a trustee in bankruptcy after levy and before sale. (Ex parte Browning, L. R., 8 Ch. D. 596.) Neither does he become entitled to poundage on a fi. fa. when the property taken thereon is destroyed by fire or other casualty. (Campbell v. Cothran, supra.) The application of such expressions must be limited to the circum stances of the cases in which they were used, and deemed as intending to convey the idea that under the particular statute then being construed, the sheriff's right to fees became fixed by virtue of his levy, and the liability thereby incurred by him to the judgment creditor for damages arising out of a loss of property levied upon, or by the escape of the defendant from custody. Such expressions were undoubtedly used to convey an idea of the equitable considerations which induced the adoption of statutory provisions giving compensation to sheriffs, but they cannot operate to extend the class of cases in which fees are allowed beyond those authorized by the terms of the

statute.

While we would not be considered as depreciating in any degree the risk incurred by a sheriff in executing the processes of the court, yet the hazard of liability for damages upon an escape must be much diminished by the presumed irresponsibility of a defendant against whose property an execution must previously be issued and returned nulla bona before his body can be taken in execution. The condition and circumstances of the debtor may be given in evidence in mitigation of damages in an action upon the case against the sheriff to recover damages for an involuntary escape. (Patterson v. Westervelt, 17 Wend. 543; Smith v. Knapp, 30 N. Y. 581; Metcalf v. Stryker, 31 id. 257; Macrae v. Clarke, 1 H. & R. 479.) It is otherwise, however, when the sheriff has made himself liable