
    Samuel Gaty, Respondent, v. John C. Vogel, Appellant.
    
      Officer — Sheriff—Fees—Executions.—Under'the statute relating to fees, K. C. 1855, p. 768-9, § 13, the sheriff is only entitled to half commissions when he receives the money without making a levy, or when he makes a levy and the money is paid! to the sheriff or the party entitled without a sale.
    
      
      Appeal from St. Louis Circuit Court.
    
    
      Krum, Decker & Krum, for appellant.
    The case made by the pleadings and evidence shows that the amount of the judgment recited in the execution in the hands of the defendant was paid to the attorneys of the party entitled thereto without a levy. In such cases a sheriff is entitled to half commissions on the amount so paid — Sec. 13, R. C. 1855, pp. 768-9. It is not questioned that the defendant is entitled to the commissions claimed by him if he is entitled to any commissions whatever. We insist that the claim of the defendant is within the spirit, if not- the letter, of the statute regulating fees.
    
      Ed. T. Farish, for respondent.
    I. Rees illegally exacted may be recovered back although not paid under a mistake of fact — 8 Bós. 148 ; 3 How. 102; 2 B. & Aid. 562; 2 E. D. Smith, 227 ; 2 Barn. & C. 729 ; 4 Cow. 454 ; 2 N. H. 39 ; 20 Law & Eq. 319.
    II. Section 13, p. 178, R. C. 1865, in force when this execution was in hands of sheriff, and under which his claim for commissions is based, did not entitle the sheriff to commissions ; there was no levy or sale, nor was the money paid to the sheriff without a levy. The sheriff did not, under the law, earn any commissions.
   Wagner, Judge,

delivered the opinion of the court.

Gaty was the assignee of the judgment and the legal title was vested in him, and it was not material to Vogel who paid the commission provided he was not entitled to it. The execution was ordered to be returned unsatisfied by the judgment creditor, and Vogel, as sheriff, refused to comply with the order unless the costs and commissions were paid; and for the purpose of having the endorsement made on the execution, the commission was paid under protest. The money was not received by Vogel, nor was any levy made under the execution, and he claimed and exacted half the statutory commission given where money is collected by the sheriff on execution.

The statute of 1855, under which this action arose, in relation to fees, prescribes the amount the sheriff shall be entitled to for receiving and paying over money, where the same is collected on. execution or other process, when property has been levied on, advertised and sold, and gives one half the amount of such commission where the money is paid to the sheriff without a levy, or where the land or goods levied on shall not be sold, and the money is paid to the sheriff or person entitled thereto, his agent or attorney. The sheriff is only entitled to the half commission by the act where he receives the money without making a levy, or where he makes a levy and the money is paid without a sale.

Judgment affirmed.

The other judges concur.  