
    David Seastrunk, (Pay-master 18th Regiment) v. Henry W. Rice, (Sheriff of Colleton District.)
    WBere a militia execution (under the A. A. 1835, p. 18,) directed tBe Sheriff to levy a certain per centage on. tlie general tax of the delinquent, the Sheriff was bound to ascertain the amount and collect it.
    The Sheriff is not entitled to any fee on a militia execution, under the A. A; 1835, except where the fine has been collected.
   So determined by Butler, J., at Waterboro’, Fall Term, 1839, upon a rule, calling upon the Sheriff to show cause why he had not collected and paid over certain militia fines embraced in three executions issued by the Colonel of the 18th Begiment. The Sheriff returned that he had collected on said executions the sum of thirty-three dollars and fifty cents, but claimed to retain this amount, to pay costs, which, the 18th Begiment owed him for cases sent out, and returned non est inventus, or remitted by the Colonel. This return was objected to — 1. Because the Sheriff has no right to retain money collected, to pay costs not on the face of the execution. 2. Because the executions above mentioned, direct the Sheriff to collect twenty, and in some cases fifty, per cent, on the general taxes of the persons fined, which the Sheriff had failed to do, contending, that he was not required, by law, to ascertain the amount of taxes paid by persons fined; and to sustain this position, relied on Sec. 10 A. A. 1813, (p. 9,) and Sec. 3, A. A. 1809, (p. 35.) To this, it was replied, that the Act of 1835, page 19, Sec. 3, prescribes the precise manner in which the execution shall be drawn, deprives the Court Martial of the power of fixing the amount of assessment, and leaves this duty solely for the Sheriff to perform.

The objections to the return were sustained, and the rule was made absolute. The Sheriff moved the Court of Appeals to set aside the rule; but his motion was dismissed on the grounds stated above. 
      
       8 Stat. 520; Id. 516, § 5 ; Id. 582. An.
      
     