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638 THE CAPE SABLE COMPANY'S CASE.
Was taken, (o) This provision is expressly coined to personal
property; the law remains unaltered as to any real estate which
may be taken in execution; and, consequently, after the dissolu-
tion of an injunction, which had prevented a sale of lands, the
proper mode is for the sheriff to proceed to sell under the original
levy, which remains unbroken; or to have him commanded to
make a sale of it by a venditioni exponas. (p) I cannot conceive,
that this act of Assembly which directs the personal property to be
re-delivered, will admit of being so construed as in any manner to
impair the sheriff's right to his poundage fees. Its avowed object
was to relieve him from his responsibility as the keeper of perisha-
ble property; and to benefit the defendant by delivering it back
to him. In other respects the sheriff's right to his fees remains
unaffected.
From these views of the subject I feel satisfied, that the sheriff's
right to poundage fees has not been, in any manner, shaken by the
mere interposition of the injunction. According to the ancient
course the court would not have discharged either the person or
the property of the defendant from the custody of the sheriff under
the execution, but upon the express condition, that his poundage
fees should be paid or secured; (q) and the alterations made by
the acts of Assembly go no further than to prevent the sheriff from
holding the person or selling the personalty taken in execution as
a means of obtaining payment of his fees.
But this suit was instituted, and the injunction obtained by a
corporator of The Cape Sable Company, as complainant against
that body politic, and the plaintiffs in the executions as defendants;
and they have, by a special agreement, consented to a decree
directing the whole of the property of this corporation to be sold.
It is therefore this decree which has thus left this sheriff in the
possession of a complete legal right without any means whatever
at law of having it satisfied. If the injunction had been dissolved
the sheriff might, as we have seen, have proceeded, under the levy
be had made upon the land of this company, to make sale of it to
satisfy his poundage fees; but the decree has deprived him of the
right to do so.
The plaintiffs in the executions cannot be permitted to consent
to a decree, or in any manner to produce a sale of the defendant's
(o) 1799, ch. 79, s. 10. —(p) Bond v. Cooper, 6 November, 1826. —Per BLAND,
Chancellor, - (q) Franklyn v. Thomas, 3 Meriv, 234.
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