delivered the opinion of the court.

Gaty was the assignee of the judgment and the legal title was vested in him, and it was not material to Vogel who paid the commission provided he was not entitled to it. The execution was ordered to be returned unsatisfied by the judgment creditor, and Vogel, as sheriff, refused to comply with the order unless the costs and commissions were paid; and for the purpose of having the endorsement made on the execution, the commission was paid under protest. The money was not received by Vogel, nor was any levy made under the execution, and he claimed and exacted half the *555statutory commission given where money is collected by the sheriff on execution.

The statute of 1855, under which this action arose, in relation to fees, prescribes the amount the sheriff shall be entitled to for receiving and paying over money, where the same is collected on. execution or other process, when property has been levied on, advertised and sold, and gives one half the amount of such commission where the money is paid to the sheriff without a levy, or where the land or goods levied on shall not be sold, and the money is paid to the sheriff or person entitled thereto, his agent or attorney. The sheriff is only entitled to the half commission by the act where he receives the money without making a levy, or where he makes a levy and the money is paid without a sale.

Judgment affirmed.