
    26 Nov. 1818.
    AMOS DAVIS, vs. ROBERT ARMSTRONG.
    
      On an appeal from a judgment of the Montgomery circuit court.
    
    A pii’ff in residing out of d-he «íot^récover the sheriff on motion, colieciedcun-Ve-s he has appointed an county111 1<16 made-á per-soimtor written demand in i “ C0UD
   The Chief Justice

delivered the opinion of the court.

This is an appeal from a judgment rendered, on motion, against the appellant for money collected by him, as deputy sheriff of Montgomery county, on an executiop issued in the name of the appellee.

It appears from a bill of exception filed in the case, containing the evidence upon which the decision of the circuit court was given, that the appellee was not a resident of Montgomery county; but it does not appear that he had named any person, resident in that county, as his agent, to receive the money when collected; nor does it appear that ^ pjmself, or any person having a written order from him, bad demanded of the sheriff, in his county, the money for which the judgment in this case is rendered. Under, these circumstances it is plain that nojudgment could be legally given against the sheriff; for the law makes it the duty of the collector, where he lives out of the county where the execution js to be levied, to appoint some person resident in county, as his agent, to receive the money, and on his failure to do so, expressly provides that no judgment shall be entered against the sheriff' for non payment of the money, or mbacco. mentioned in such execution, unless, a demand thereof shall have been first made of the sheriff in his county, by the creditor, or some other person having a written order from him. See 36th sec. of the act concerning executions, &c. passed 19th Dec 1796.

Bibb for appellant, Hardin for appellee.

Judgment reversed with costs, and cause remanded for proceedings to be had, not inconsistent with this opinion.  