
    Isaac W. Carter, sheriff, plaintiff in error, vs. J. W. Cardwell & Company, defendants in error. B. S. Sheats, executor, et al., plaintiffs in error, vs. J. W. Cardwell & Company, defendants in error.
    1. Where a portion of an execution from the Superior Court, was voluntarily paid to the sheriff by the defendant, but before the next term of the Court, executions of older date from a Justice Court were placed in his hands to claim the money, and, upon a rule, the fund in the sheriff’s hands was applied to the oldest execution, it waa error in the Court to make the rule absolute for the full amount of the Superior Court fi. fa. It should have been made absolute only for the uncollected balance.
    2. The refusal of a rule absolute against tbe sheriff for the balance due on the Justice Court fi. fas., they having been placed in his hands before levy, and when there was no mandate from the Court to him to make the money on them, hut for the purpose of claiming what money might be realized on the Superior Court execution, was not error.
    Rule against officer. Sheriff. Execution. Justice Court.
    Before Judge Buchanan.
    Campbell Superior Court.
    February Term, 1873.
    Tbe only facts necessary to an understanding of these two eases, beyond those stated in tbe decision, and as far as can be gathered from very confused records, are as follows:
    After Carter, sheriff, had levied the Cardwell & Company fi. fa., the defendant paid to him $100 00. Before any other payment was made, he went out of office. Subsequently, and before the rule nisi was issued, be collected the entire balance due on said execution. Six executions in favor of Sheats, executor, et al, issuing from a Justice Court, all of them of older date than the Cardwell & Company y?, fa., were placed in his hands to claim said fund. Upon a money rule, the Court directed the $100 00 first aforesaid to be paid to the oldest Justice Court fi. fas., and ordered a rule absolute to issue against the sheriff for the entire amount of the Cardwell & Company fi. fa., and refused rule absolutes for tbe balances still unpaid on the Justice Court fi. fas. The Court ignored the payments made to the sheriff after he had gone out of office. The sheriff excepted to the judgment making the rule absolute against him for the entire amount of the Cardwell <& Company fi. fa, Sheats, executor, and the other holders of the Justice Court fi. fas., excepted to the decision refusing rule absolutes in their favor, thus ignoring the payments made to the sheriff after his official career had ceased.
    Error is assigned upon each of the aforesaid grounds oh exception.
    Wright & Dent; A. D. Freeman; Thomas W. Latham, for plaintiffs in error.
    Eobert J. Tuggle, by Lester & Thomson, for defendants.
   Warner, Chief Justice.

The case of Carter, plaintiff in error, vs. Cardwell & Company, and the case of Sheats et al., plaintiffs in error, vs. Card-well & Company will be considered together, as both cases are founded on a rule against the sheriff of Campbell county to show cause why he should not pay the amount of Cardwell & Company’s execution placed in his hands for collection. Carter, the sheriff, excepts to the judgment of the Court because he was made to pay $100 00 more .than the amount of Card-well & Company’s fi. fa., and the other parties except as to the judgment of the Court disposing of the money. It appears from the record, that in November, 1872, a fi. farí.rom Campbell Superior Court, in favor of Cardwell & Company against Beck, for the sum of $325 00 principal, besides interest, was placed in the sheriff’s hands for collection. The sheriff made a levy on the defendant’s property, who paid him $100 00, and the sheriff promised to wait with him for the balance due on the fi. fa. until Court and not advertise and sell his property. Shortly after the Cardwell & Company fi. fa. v/as placed in the sheriff’s hands, several Justice’s Court fi. fas. of older date were placed in his hands against Beck, with instructions that any money paid by Beck should be applied to them. The Court ordered the $100 00 which Beck had paid to the sheriff, to be applied to the Justice’s Court fi. fas., and then made the rule absolute against the sheriff for the full amount of the Cardwell fi. fa. In our judgment, this was error. The Cardwell & Company fi. fa. was the only one in the sheriff’s hands which commanded him to make the money due thereon, and if he failed to make the money, eitllfer by the payment thereof by the defendant or by levy and sale of his property, then he was liable to be ruled therefor. If, however, the defendant paid the sheriff part of the money due on the fi. fa., then he was liable to be ruled only for so much as he had failed to collect. In this case he had collected $100 00, and he was only in default for failing to collect the balance due on the fi'. fa. Under the notice given him as to the claim of the Justice’s Court fi. fas., placed in his hands, it would have been the duty of the sheriff to have held up. the money until Court, whether it was voluntarily paid by the defendant or made by the sale of his property, in order to have been protected in the payment thereof by the judgment of the Court. Although the Justice Court fi. fas. might have been the oldest, still, if they had been fraudulent or void for any cause, the sheriff would have taken the risk, if he had paid them without the judgment of the Court. The rule against the sheriff should have been made absolute against him only for the amount due thereon, which he failed to collect from the defendant, either by his voluntary payment thereof or by a levy and sale of his property, and no more. The Justice’s Court fi. fas. placed in the sheriff’s hands had not been levied on the defendant’s property, and there was no mandate from the Court to the sheriff to make the money on them. What disposition was to be made of the money*when collected by the sheriff on the Cardwell & Company fi. fa. was another question. We therefore reverse the judgment of the Court below in the case of Carter, plaintiff in error, vs. Cardwell & Company, and affirm the judgment of the Court below in the case of Sheats et al., plaintiffs in error, vs. Card-well & Company.

Let the respective judgments be so entered on the record.  