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 cent-age 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 *29property 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.