614 CAPE SABLE COMPANY'S CASE.—3 BLAND. I

ber, 1779, ch. 25, s. 4 and 5; Howard v. The Levy Court, 1 H. & J.
566. It would seem, from what has been said in this case, to have
been held to be a general rule, that the defendant was in all cases
liable; yet, in a previous case, the defendant's liability appears
to have been rested, in some degree, upon his promise to pay.
Stewart v. Dorsey, 3 H. & McH. 401. And in another case it ap-
pears, that the sheriff brought an action of assumpsit against the
plaintiff, who had sued out an attachment, * for poundage
635 fees which he claimed for executing the writ upon the lands
and tenements of the non-resident defendant, as fees allowed by
the Acts of Assembly. November, 1779, ch. 25, s. 3; 1790, ch.
59, s. 2. Upon which it was held, that they must be paid by the
person who issues the attachment. Maddox v. Cranch, 4 H. &
McH. 343.

The result of these adjudications I take to be. that in all cases
where the sheriff has taken the property of the defendant, or his
person is within reach of the ordinary modes of proceeding, the
defendant shall bo held liable; but where he is beyond the reach
of the process of the law, the plaintiff, who proceeds against him
as an absentee or non-resident, shall be liable for the poundage
fees.

On applying these principles to the case under consideration, it
cleaily follows, that this defendant the Cape Sable Company alone
is liable at law to this sheriff lor his poundage fees; the complete
legal right to which, to the full amount of the debt actually due,
accrued by the levy he made, as specified by his return of those
writs. And it is equally evident, that but for the interposition of
the injunction lie might have sold the property of the company, at
least, to the amount of his fees; or have enforced the paymeut of
them in like manner as other lees. It was therefore the injunc
tion of this Court, which put a stop to all further proceedings at
law, that presented tins sheriff from recovering his poundage fees
by means of the executions he had levied. And it is by means of
the decree of this Court, under winch all the property of this body
politic has been sold; and which has reduced it to the condition
of a mere penniless entity, utterly destitute of pecuniary ability
to pay any claim, that this petitioner seems now to stand upon the
eve of being deprived of the means of recovering his fees, in any
manner whatever, unless by the aid of this Court.

At common lawr a plaintiff might be prevented from obtaining
the benefit of his judgment by a writ of error. Formerly there
was always sued out along with a writ of error, a writ of super-
sedeas, winch directed, "that if the judgment be not executed
before the writ of supersedeas, the sheriff is to stay from exe
cuting any process of execution until the writ of error is deter-
mined.'' From which it appears, that if the execution had been
begun before the supersedeas was delivered, the sheriff ought to