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THE CAPE SABLE COMPANY'S CASE. 635
for poundage 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, (g) Upon which it was held,
that they must be paid by the person who issues the attach-
ment, (h)
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 be 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
clearly follows, that this defendant The Cape Sable Company alone
is liable at law to this sheriff for 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 he might have sold the property of the company, at
least, to the amount of his fees; or have enforced the payment of
them in like manner as other fees. It was therefore the injunction
of this court, which put a stop to all further proceedings at law,
that prevented this 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 which all the property of this body
politic has been sold; and which has reduced it to the condition
of a mere pennyless 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 law 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, which directed, 'that if the judgment be not executed before
the writ of supersedeas, the sheriff is to stay from executing any
process of execution until the writ of error is determined. ' From
which it appears, that if the execution had been begun before the
supersedeas was delivered, the sheriff ought to proceed to complete
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(g) November, 1770, ch. 25, s, 3; 1790, ch, 59, s. 2, ~~(h) Maddox v. Cranch, 4
H. & McH. 343.
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