Ludwig against Britton, 3 Watts & Serg. 447

Per Curiam. The object of the supersedeas was to give the defendant the benefit of the stay on terms of putting the plaintiff in statu quo, by payment of the costs of the execution to the proper officer. It is admitted that the defendant discharged the bill presented to him by the constable, which, however, happened not to include the justice’s fee for issuing the writ. But whose fault was that ?

It was apparently the fault of the justice, who seems not to have demanded his fee when he issued the supersedeas, or perhaps omitted to tax it on the back of the execution; and he ought to lose it for his negligence, rather than that the defendant should lose his privilege. Or if the constable is to blame for not having demanded enough, he must answer it to the justice. The fee is lost to the one or the other of them; but as neither the plaintiff nor the defendant was to blame, neither of them can lose or gain by the default of another.

As the plaintiff cannot be called on for the fee hereafter, it is paid so far as he is to be regarded; and the Judge erred in charging that the constable had a right to proceed if the supersedeas was granted on payment of costs. The execution was at an end, and the forthcoming contract was dissolved. Judgment reversed.