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THE CAPE SABLE COMPANY'S CASE. 671
this case operated; by virtue of which the perishable personal
property taken in execution was delivered back, as directed by the
act of Assembly. And therefore, upon the same principles, that
this provision of the act of incorporation has made no alteration in
the legal character of the several kinds of property of which the
estate of The Cape Sable Company was composed, it follows, that
the liens of Oliver and Carroll can only attach upon their real
estate; and that their personal property was only bound from the
day of the delivery of the executions to the sheriff.
But that lien upon the personalty was broken and entirely dis-
engaged by the injunction, in virtue of which it was delivered
back to the owner. And although the sale under this decree gave
to the sheriff a well founded equity, as has been explained, to
come here and obtain satisfaction for his poundage fees; yet I do
not perceive any thing in this case which can give to Oliver and
Carroll a right to claim a preference in satisfaction out of these
proceeds of sale, upon the foundation of that lien upon the person-
alty which they once held by virtue of their executions, and which
has been destroyed by the injunction. Because, upon a dissolu-
tion of the injunction the personal property would not be thereby
so restored to the custody of the sheriff as to justify him in selling
it under the same execution, or to authorize the plaintiff to sue out
a venditioni exponas ordering him to sell it; nor can Oliver and
Carroll claim any such preference upon the ground of their having
been deprived of that advantage by this decree; because it was
passed with their express consent, and without the slightest reser-
vation to that effect.
It is therefore, evident, that the claims of Oliver and Carroll to
a preference of satisfaction in virtue of their judgments, must, if
practicable, be confined to the proceeds of the sale of the real
estate of The Cape Sable Company; and that as regards the pro-
ceeds of the sale of the personal estate, they can be allowed to take
no higher ground than any of the other creditors of the company.
But no one of the parties now here has adverted to this dis-
tinction, and objected to the claims of Oliver and Carroll to have
satisfaction in preference to all others out of the proceeds of the
personalty upon the ground, that they, in fact, had no lien upon
the personal estate of The Cape Sable Company after the injunction
was served. Why such an objection has not been made, it is not
for this court to say. But from the report of the trustees who
made the sale under the decree, or from the whole of the proceed-
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