Howard v. Levy Court

1 H. & J. 558

Opinion

Chase, Ch. J.

(a). The court think the question has been decided by this court, that the defendant, and not the plaintiff, is liable for the sheriff’s poundage fees on executions. If it were not so, the poundage fees would be considered as part of the costs.

The assembly, by the act of November session 1779, ch. 25, s. 4, intended to redress (he evil practice of sheriffs in taking more poundage fees than they ought. That act directs the sum to be endorsed, and the sheriff is not bound to execute (he writ unless such endorsement is made. The act shews that the defendants are liable to pay those fees, ami there is no instance of the plaintiff’s receding the poundage fees from the defendant.

Upon a fieri facias, if goods are taken, and the debt is compromised, the sheriff' can st il to the amount of his poundage fees.

If the defendant has paid the debt and costs, tlie court would n<>t say the shenir lould detain him in execution for the poundage fees. But the sheriff may call on the defendant for (he poundage fees, anti compel payment in the, same manner as he can for other fees.

Suppose a ca. sa. against several persons, and one of them pays the debt and tests, and poundage fees, and (he ¡■C.-sif vtau to say he would not discharge (he ouser «Ctendanfs until they also paid the poundage fees; what would (;■/, court, saj? Why they would compel him to discharge the other defendants.

The court are oí opinion, "that no more can be received by the sheriff but poundage fees upon the sum really 'and actuady due to the plaintiff in the execution, That the shei iff is not entitled to but one poundage fee on executions against the principal and bis securities, whether on a joint or separate judgment; and that the defendant, and not the plaintiff, is answerable for the poundage fees. ’I hat where executions issue to separate counties for the same debt, against the principal and his securities, or several defendants, then the sheriffs ought to.divide the poundage fees.

MANBASíuS RBRuSEI).(a).

.) Done. J, absent. Sprigs, concurred.

The following is an opinion given by the Attorney General, (Lather Mai tin, Fsq.) in October 1804, upon some of the ques-' tions raised in this case, viz.

«'Judgments are obtained by a plaintiff in separate actions on the same bond, or oil the same deht against principal and sureties. Fi.fa’s. are taken out upon these judgments, Though each-person is answerable for the whole debt,yettheyare altogether only answerable for one amount. The sheriff cannot levy more than the whole debt upon any one or all. He is o'nly at risk to the amount of the debt, and cannot therefore be entitled to ,claim more than poundage tees upon the actual debt. For these poundage fees^ each and all are answerable till paid, but the sheriff cannot claim full poundage fees on the debt against each, and compel each ‘ t© pay them»55