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

v. Bingham, 12 Cond. Chan. Rep. 253; the personal estate should,
in this instance, have been first applied. And, therefore, the
sheriff here must be held to be entitled to poundage fees on the
personalty, so far as it would have gone, according to its appraised
value, towards the satisfaction of the sums really due; and for the
residue to poundage fees upon the realty. Clerk v. Withers, 6
Mod. 299.

Whereupon it is ordered, that the petitioner William O'Hara be
and he is hereby allowed poundage fees as prayed: that is to say,
the amount of such fees to be estimated according to law, on the
personal property taken in execution by him as aforesaid, so far as
the same was adequate, according to its appraised value, to have
satisfied the amount really due upon the said executions, and re-
quired to be made by them; and upon the residue thereof, which
must have been satisfied out,of the real estate so taken in execu-
tion, according to law as where lands are taken in execution and
sold. November, 1779, ch. 25, s. 4 and 5; 1790, ch. 59; 1813, ch.
102, s. 5 and 6. And it is further ordered, that the said poundage
fees are hereby allowed out of the proceeds of the sales of the
property of the Cape Sable Company in preference to the claims
of the plaintiffs in the said executions, and of the Cape Sable
Company and its corporators. And the auditor is hereby directed
to state the claim accordingly.

* On the 20th of April, 1829, Philip G. Lechleitner, as a
642 claimant against the proceeds of sale in this case, by his
petition, not on oath, stated, that the sheriff O'Hara had, by a
special contract, agreed to accept as compensation for his services
a sum about two-thirds less than his legal poundage fees. Where-
upon he prayed, that O'Hara might be ordered to answer, and
that the matter might be reheard. On the 21st of the same month
this application was dismissed with costs.

On the 25th of April, 1829, George Neilson, administrator of
James Neilson, deceased, Eli Balderson, Benjamin Welch and
Hugh Mullen, creditors, who had filed their claims against the
Cape Sable Company, under the decree, by their petition, not on
oath, stated, that no payment had then been made to O'Hara
under the order of the 15th December; that the time allowed by
the notice given, as directed by the decree, for creditors to bring
in their claims, expired on the 30th of December last; after which
day, and before the passing of the order of the 15th of Decem-
ber, they had filed their claims; and, therefore, they had neither
in point of law or of fact, any notice of O'Hara's petition, or any
opportunity of controverting his claim; that O'Hara had entered
into a special contract to accept as a compensation for his ser-
vices, much less than his legal fees; and yet had, in his petition, .
suppressed all mention thereof; thereby leaving the Court to pre-