¶1*150The opinion of the court was delivered by
¶2This writ of error is brought by Marshall Gr. Kinney, Jr., to bring up for review two orders of the Circuit Court of Camden county, one directing the sheriff to bring into court the surplus of money raised by him upon sale of property under executions, and the other making-distribution of that money. When the sale was made, Kinney’s execution was not in the sheriff’s hands; his judgment had not then been recovered. At the time of tire sale there-were $2600 rent due from the judgment debtors to the landlord of the premises sold under the execution. It .was agreed at the sale, between the execution creditors and debtors and', the landlord, that the rent should be paid out of the proceeds, of the sale. The property was struck off at $7050, of which $2600 were paid by the purchaser to the landlord and were; never received by the sheriff, but the balance only, $4450,, was paid to him. Out of this money he paid off the executions in his hands, and there remained a surplus of $762.72. Kinney insists that the sheriff should be held liable for the-$2600. The defendants in execution were entitled to the proceeds of the sale remaining after paying the executions in the-sheriff’s hands, and they had a right to dispose of them. They did so effectually as to the $2600, by the agreement that the purchaser should pay the money to the landlord in satisfaction of their debt. The order for the payment of the surplus into court specifies the amount of it as $762.72. There-is no error in it, and it should therefore be affirmed.
¶3The order of distribution is before this court irregularly,, and there is no evidence before us on which we can decide the question raised in reference to it. The writ should be dismissed so far as that order is concerned.
¶4For affirmance — The Chancellor, Chief Justice, Depue, Dixon, Knapp, Magie, Reed, Scudder, Van Syokel, Brown, Clement, Cole, Paterson, Whitaker. 14.
¶5For reversal — None.