GILMOR VS. BRIEN. 41

praying among other things, for an injunction to prevent the
latter from proceeding upon their judgments. Subsequently
the complainant purchased up these judgments, and had them
entered for his own use, and agreed to pay all legal costs aris-
ing thereon.

A petition was afterwards filed in the case by Thomas Keller
and David T. Wilson, late sheriff of Washington county, for
an order on the complainant (who was admitted to be in actual
possession of the property, claiming to hold under the mort-
gages to him,) to pay them the poundage fees on said execu-
tions, and also the officers' fees above mentioned.

This petition, (which sets out the above mentioned facts and
also alleges the insolvency of the defendant Brien,) having
been argued before the Chancellor, he delivered his opinion as
follows:]

THE CHANCELLOR :

The general rule, undoubtedly, is, that the defendant and not
the plaintiff, is answerable for the poundage fees. Howard vs.
the Levy Court, 1 H. & J., 558, approved in Gurley vs. Lee,
Gill & Johns., 395.

In this case, Mr. Gilmor is the plaintiff, being the assignee
of the judgments, and if he can be made liable for these fees, it
must be because of some exception to the general rule, which
general rule imposes the burden upon the opposite party.
There is nothing in his agreement made at the time he pur-
chased the judgments, which imposes this obligation upon him,
as it appears by the statement and deposition of Mr. Neil, who
transacted the business for him, that he bound himself, and
only agreed, to pay those fees which were chargeable to the
plaintiffs in the judgments, and none others.

The Court of Appeals have said, in the case of Gurley vs
Lee, that if an execution issues irregularly, that being the act
of the plaintiff, he and not the defendant will be liable to the
sheriff for his poundage fees, but in the same case it was de.
cided, that if the execution is stayed by injunction, the defend-
ant at law is liable. In the case under consideration, the in-
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