¶1Ruffin, having been sheriff, went out [259 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.
¶2*264A dispute arose, and they submitted to the Court of Common Pleast the court decided that the old sheriff, in such cases, should have but oñe-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 this 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.
¶3Judgment for the plaintiff.
¶4[Another question on division of fees between these parties was-decided in 4 O. 420.]