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THE CAPE SABLE COMPANY'S CASE. 633
been compromised, it has been made a question whether the plain-
tiff 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 defendant's
body taken into custody; or by obtaining a delivery of his pro-
perty, 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 plaintiff, and
not by the defendant. But if the judgment be for a penalty, the
plaintiff has a right to receive the whole of his debt, independent
of the expenses of the execution; and, in those cases, the defen-
dant is liable for the whole amount of the poundage fees, (u)
It would seem, that in England sheriffs had taken advantage of
the general phraseology of this statute of 1587, and charged pound-
age fees for the whole amount specified in the writ, in all cases,
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 endorsed on
the back of the writ, on which amount, and no more, poundage fees
were to be allowed, (w)
It appears, that one of the causes which accelerated and aggra-
vated the war of independence in this state was an angry contro-
versy which had arisen between the last Proprietary governors and
the people as to the right to fix and regulate officers' fees; (x) in
consequence of which the second General Assembly of the Re-
public, passed an act, even before the judicial department had been
fully organized, to regulate such fees; in which, apparently in ac-
cordance with an English principle, (y) it declared, 'that officers'
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(u) Woodgate v. Knatchbull, 2 T. R. 157. —(w)3 Geo. 1, c. 15, s, 17; Tidd's
Prac. 979. —(x) Biography Sign. lad. vit Carroll. —(y) 2 Inst. 533; The Rendsberg,
6 Rob. Adm. Rep. 162.
80 v. 3
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