612 CAPE SABLE COMPANY'S CASE.—3 BLAND.

nothing in the petitioner's case which can entitle him to relief
upon any such grounds as against the parties to this suit who are
the plaintiffs in the executions.

But there are other kinds of executions which go against the
person, or do not direct the property of the defendant to be taken
and converted into money, on obeying which the sheriff becomes
entitled to poundage fees. On taking the defendant into custody
under & capias ad satisfaciendum, the sheriff becomes entitled to
poundage fees on the whole amount. Peacock v. Harris, 1 Salk.
331. And so, too, on executing a lerari facias, an elegit, or a libe-
rate, by virtue of which the property is not sold, but specifically
delivered to the plaintiff in satisfaction of his claim. Tyson v.
Paske, 2 Ld. Raym. 1212. In all these cases, as well as in all
those where the execution, after it has been regularly levied, but,
before a sale, has been countermanded; or has been quashed on
account of some previous error in the proceedings; or the suit has
* been compromised, it has been made a question whether
633 the plaintiff or the defendant was liable to the sheriff for
his poundage fees.

The English statute which allows these fees says nothing which
indicates an intention of the Legislature to impose a liability for
them upon either the plaintiff or the defendant. It might be sup-
posed, that in all cases where the amount of the plaintiff's claim
was to be raised by a sale of the defendant's property, that the
poundage fees should be included; and, consequently, that the de-
fendant should be liable for them. And, that in all other cases
where the plaintiff obtained satisfaction by having the defend-
ant's body taken into custody; or by obtaining a delivery of his
property, as no money passed through the sheriff's hands, from
which he might deduct and retain his fees, the plaintiff' should be
held liable for them. But no such distinction has ever been made
or recognized in any of the adjudged cases. On the contrary, it
is said that in actions on simple contract, and judgments for a
debt certain, the expenses of levying must be paid by the plain-
tiff, and not by the defendant. But if the judgment be for a pen-
alty, the plaintiff has a right to receive the whole of his debt, in-
dependent of the expenses of the execution; and, in those cases,
the defendant is liable for the whole amount of the poundage fees.
Woodgate v. Knatchbull, 2 T. R. 157.

It would seem, that in England sheriffs had taken advantage of
the general phraseology of this statute of 1587, and charged
poundage fees for the whole amount specified in the writ, in all
eases, although there was, in truth, no more than a small balance
due. To remedy this grievance, another statute was passed in
the year 1716, requiring the sum really due in all cases to be en-
dorsed on the back of the writ, on which amount, and no more.