
    HICKMAN vs. MATLOCK.
    The defendant was the sheriff of Smith county, to whom an execution had issued against the property of James C. Mountflorence, upon which he had sold land for several hundred dollars more than the execution. This ballance was by the return of the sheriff, stated to have been applied to a claim by an attachment against Mountflorence. Under these circumstances, the execution of the plaintiff come to the hands of the sheriff, who returned specially the above facts. Under the act of 1803. c. 18. a motion had been obtained in the county court of Smith, to recover the above balance, where the motion was overuled, and an appeal to this court.
   Per Curiam.

The judgment must be affirmed. The duty of a sheriff, upon a fi. fa. was to pay the balance into court, or hold it subject to the claim of Mountflorence, unless it had been taken out of his hands by order of court. He did not collect the money by execution of the plaintiff, therefore it is not subject to his demand in this way. See Wils. ed. Bac. Ab. 715. n. 1. Cr. 117. But on suggestion of the parties it was continued on advisement.  