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THE CAPE SABLE COMPANY'S CASE. 631
to real executions, but only to executions in personal actions;
and, therefore, the sheriff is, in England, allowed no poundage
fees for executing a habere facias possessionem. (m) Nor do they
embrace any case where money is raised by process of attachment
for contempt, upon which no poundage fees can be charged, (n)
It would seem, that the sheriff's right to poundage fees accrues
and is complete in all cases immediately that the writ is regularly
executed; although no sale should be made; or the execution, be-
cause of some antecedent error should be quashed, or the suit
should afterwards be compromised, (o) In strictness the sheriff
should make a return of the whole sum produced by the sale, when
the court will order it to be paid over, deducting the poundage;
but where the sheriff has received the poundage fees to which he
was legally entitled, he will be allowed to retain them, (p)
It has been urged, that the sheriff has a lien upon the property
taken in execution, for his poundage fees. But it is no where
directly said, that he has any such lien upon the property taken,
either as against the plaintiff or the defendant; or that he has a
right to hold it in any way until his fees are paid. Yet the allow-
ance of such a lien, so far as it does not conflict with the rights of
others, or that superintending control necessary to the due adminis-
tration of justice would seem to be entirely reasonable, and sus-
tainable upon principles analogous to those on which tradesmen
and officers are allowed to have a lien upon property in their pos-
session to secure the payment of their compensation and fees.
But such a common law lien can only exist as an associate with
possession; it begins and ends with possession, (g)
In this case the petitioner having been lawfully and completely
divested of the possession of all the property he had taken in exe-
cution, he certainly can have no lien, according to the common
law, upon it, or its proceeds, which the court is now about to dis-
tribute. And there is not the slightest ground to maintain, that a
sheriff has a general lien on the property taken by him in execu-
tion, like the lien of the state upon the property of its debtors, or
a plaintiff's judicial lien, as on a judgment at law, or a lien ac-
cording to the civil law which follows the property on which it has
(m) Peacock v. Harris, 1 Salk. 331, —(n) The King v. Palmer, 2 East. 411. -
(o) Peacock v. Harris, 1 Salk. 331; Earle v. Hummer, 1 Salk. 832; Tyson v. Paske,
2 Ld. Raym. 1212; Alchin v. Wells, 5 T. R. 470; Rawstorne v. Wilkinson, 2 Mau.
& Sel. 256. —(p) Com. Big. tit Viscount, (F. 2. ); Woodgate v. Knatchball, 2 T.
R. 148; Alchin v. Wells, 5 T, R, 470, —(q) Selw. N. P. 1286.
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