
    RUFFIN v. AVERY.
    Distribution of fees between old and new sheriff — settlement-—opening up a settlement.
    The Couitof Common Pleas has power, by law, to determine what portion of the outstanding fees or execution shall be paid to t(ie outgoing sheriff, who assigns over the process.
    When the court has fixed the rule, and the yaitíes have acquiesced and settled, the incoming sheriff has no right to retain other fees due to his predecessor, and compel him to open up the settlement and refund. In such case, the court will hold the parties to abide their settlement.
    Assumpsit for money had and received. The case was submitted on an agreed state of facts.
   By the Court.

Ruffin, having been sheriff, went out of office, and Avery succeeded him. There was, at the time, considerable unfinished business on executions. For some time, the parties divided the fees in such cases equally, and the defendant paid over. A dispute arose, and they submitted to the Court of Common Pleas: the court decided that the old sheriff, in such cases, should have but one third of the fees. This decision was brought up to the Supreme Court, and that court decided that the statute empowered the Court of Common Pleas to make such appointment; and as that court had exercised the power, they would not disturb it. After this, the defendant, out of the third of the fees collected for the plaintiff, retained a sum equal to the difference between the one-half, which he had before paid, and one-third. To recover that sum, this suit is brought. It is claimed, that the one-half of the fees were paid over, in the several settlements by the defendant, in ignorance of his right, and that he can now retain. If he would have retained more than one-half, he should have done so when he had the fees. He voluntarily settled and paid over what both parties then thought was right, and we cannot disturb these settlements.

Judgment for the plaintiff.  