¶1So determined by Butler, J. at Walterboro’, Fall Term,. 1839, upon a rule, calling upon the Sheriff to shew cause why he had not collected and paid over certain militia fines embraced in three executions issued by the Colonel of the 18th *72Regiment. The Sheriff returned that he had collected oil said executions the sum of $33 50, but claimed to retain this amount, to pay costs, which the 18th Regiment owed him foT cases sent out, and returned non est inventus, or remitted by the Colonel. This return was objected to-1 — 1st. Because the Sheriff has no right to retain money collected, to pay costs not on the lace of the execution. 2nd. Because the executions above mentioned, direct the Sheriff to collect 20, and in some cases 50, per cent, on the general taxes of the persons fined, which the Sheriff had failed to do, Contending, that he was not required, by law, to ascertain the amount of taxes paid by persons fined; and to sustain this position, relied on Sec. 10 A. A. 1813, (p. 9,) and 3d Sec. A. A. 1809, (p. 35.) To this, it was replied, that the Act of 1835, page 19, Sec. 3, prescribes the precise manner in which the execution shall be drawn, deprives the Court Martial of the power of fixing the amount of assessment, and leaves this duty solely for the Sheriff to perform.
¶2The objections to the return were sustained, and the rule was made absolute. The sheriff moved the Court of Appeals to set aside the rule ; but his motion was dismissed on the grounds stated above.