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THE CAPE SABLE COMPANY'S CASE. 641
been the course of this court, in all cases, where a sale of real
estate has been made under its order or decree, to have a delivery
of the possession so made as to insure the safety of the then grow-
ing crops, (x)
The statute of 1732, which subjects land to be taken in execu-
tion and sold for the payment of debts, makes no distinction be-
tween real and personal estate, (y) And I know of no case, in
this state, in which it has been held or even intimated, that in
executing a writ of fieri facias, the plaintiff or the sheriff was un-
der any, the least obligation to endeavour to obtain satisfaction
first out of the personal estate of the defendant, (z) Yet as the
ancient common law did make such a distinction; and as the per-
sonal estate is, in many respects, considered by our law as the pri-
mary and natural fund for the payment of debts; (a) 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, (b)
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, (e) And it is further Ordered, that the said poundage fees
are hereby allowed out of the proceeds of the sales of the pro-
perty of The Cape Sable Company in preference to the claims of
the plaintiffs in the said executions, and of The Cape Sable Com-
pany and its corporators. And the auditor is hereby directed to
state the claim accordingly.
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(x) Doe v. Witherwick, 11 Com. Law Rep. 8; Rawlings v. Carroll, 1 Bland,
75, note; Dorsey v. Campbell, 1 Bland, 864; Tyson v. Hollingsworth, 2 Bland,
384, mote. —(y) 5 Geo. 2, e. 7; Coombs v. Jordan, ante 284. -(z) Hanson v.
Barnes, 3 G J, S67; Osborne v. Woodson, 1 Haywood, 24. —(a) Hammond w.
Hammond, 2 Bland, 347; Clanmorris v. Bingham, 12 Cond. Chan. Rep. 253. —(b)
Clerk v. Withers, 6 Mod. 290. —(e) November, 1779, ch, 25, s. 4 and 5; 1790, ch,
59; 1813, ch. 102, s, 5 and 6.
81 V. 3
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