Curia, per

It is unnecessary now to consider whether the 63d section of the Sheriffs’ Act of 1839, 11 Stat. 38, under which this action is brought, by the terms ; “Where it shall appear to the court,” contemplates the action of the Judge only, or the Judge and jury, in judging of the sufficiency of the excuse which a sheriff may offer. Wherever may be lodged the power of judging, the duty of proving is thrown upon the sheriff. The *66Act is imperative, and neither Judge nor jury possesses the power of dispensation, or of pardoning in a case not brought within the exception.

This court concurs in the view taken on the circuit, that the directions of the defendant, of themselves, without proof of other cause, form no excuse. By application of the money to thefi.fa. the sheriff has shewn that he regarded the delivery of the rnony to him as payment, and not as a deposit. That the law may then be applied, a new trial is ordered.