|
|
|
|
|
|
|
|
|
|
|
|
|
|
630 THE CAPE SABLE COMPANY'S CASE
After these executions had been thus levied he was prevented from
proceeding to make sale, by an injunction from this court obtained
at the instance of these complainants; who represented and claimed
the interest of one of the corporators of The Cape Sable Company,
against all the plaintiffs and defendants in those writs of fieri
facias. After which, and while the injunction was in full force,
by a decree of this court, passed with the consent of all the par-
ties to the suit, all the property of The Cape Sable Company, in-
cluding the whole of that on which the executions had been levied,
was directed to be sold, and the proceeds brought in to be distri-
buted among the creditors and parties in proportion to their respec-
tive claims; and it has been sold accordingly.
The object of this petition is to recover the poundage fees to
which the petitioner alleges he became entitled upon levying those
executions.
It is perfectly clear, that a sheriff's right to poundage fees is a
claim of a legal, not an equitable character. That he has a com-
plete remedy at law, either by action, or by selling for the amount,
by virtue of the execution that has been levied is certain, and ad-
mitted on all hands. The only doubt upon the subject, at common
law, is, whether the plaintiff or the defendant is liable to him for
them, in all or in what cases. But this sheriff has thought proper
to present his claim for poundage fees to this court, in this case.
It is, therefore, not only necessary, that he should establish his
legal claim against one or other or all of these parties; but, that
he should also shew why he should be indulged in bringing that
legal claim here; and upon what ground or equitable bearing it is,
that this court can allow itself to entertain jurisdiction of his case.
According to the common law, sheriffs were entitled to no fees
whatever for executing a fieri facias or any other process. (j)
But, in England, by an act of Parliament, passed in the year 1444,
not applied here, some fees were allowed; (k) and by the statutes
passed in the year 1587 and 1716, not adopted here, they were
allowed a certain compensation for their trouble, graduated accord-
ing to the amount directed to be raised by the execution, called
poundages fees from the manner in which they are estimated; be-
ing so much per pound for the first hundred pounds; and so much
less for every pound above that. (1) These statutes do not extend
|
|
|
|
|
|
|
|
|
|
(j) Co, Litt. 368; 2 Inst. 176, 210. —(k) 23 Hen. 6, c. 9; Kilty Rep. 227. —(l)29
Eliz. 4 J Kilty Rep. 85; 3 Geo, 1, c. 15, s. 16; Kilty Rep. 112.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
 |
