
    HUBBARD & HOPKINS vs. BALDWIN & BLANCHARD.
    Whether the sheriff's commission be due, on an order of seizure without a sale.
    The plaintiffs, having sued out an order of seizure under which the property of the defendants was taken, they filed an answer, and an order was obtained for the suspension of the sale: the cause was tried, and judgment being given for the plaintiffs, the defendants paid te amount of it, before any writ issued for the sale of the property seized.
    Hopkins, on the behalf of the sheriff.
    Before the property should be restored, the defendants should pay his poundage, under the act of 1805, ch. 49, which provides that the sheriff shall be entitled to receive the compensation specified in the act of the same year, ch. 36, s. 3, for the levying monies by writ of fieri facias, in all cases where the money shall not be paid within seventy-two hour form the time the said writ of execution shall have been served. A writ of seizute is as completely a fieri facias for writ of execution, as that which issues after judgment in Court.
    
      I. Baldwin, for the defendants.
    A writ of seizure is the original process, in a suit for the recovery of money, secured by mortgage. If the parties disagree on their respective rights, this mode of instituting a suit, is the only proper one. More than seventy-two hours must elapse in every case, before the controversy be determined, and according to the proposition advanced, the defend.ant must ever be mukted. If he succeeds, surely he must get rid of the poundage ; the rule must be the same if, during the pendency of the suit, and even afterwards, the matter be settled in any manner that render a sale unnecessary
   By the Court.

Whatever may be the corn-pensation due to the sheriff when a writ of seizure is proceeded upon unti~the property is actually sold, he has no right of poundage till then. Surely he must be remunerated, for his pains and responsibility in seizing and keeping the property. The act of 1805, ch. 36, did not allow any poundage to the sheriff, on a writ offieri facias which was not followed by a sale: and the act ofthe same year, chap. 49, which allows poundage when the money is not paid within seventy-two hours after the writ is served, must be construed strictly, and confined to writs of fieri facias, and not extended to similar writs. Most writs of seizure issue against landed property; the seizing and keeping of which require, in general, but little care.

THE writ of seizure, when it does not occasion a sale, has a greater resemblance to the writ of attachment-it requires no greater trouble or care, and is not attended with more responsibility. The act of 1805, ch. 36, provides that the sheriff's account, for keeping property seized and held under attachment, shall be settled and allowed by the Court, in case of dispute. The rule ought to be the same this case.

*** The sheriff appearing dissatisfied, and it being suggested that the practice had keen other-ivise, no judgment was given, and thecase was reserved for the opinion of all the judges.  