Cooper v. Stonecypher

Fish, J. 1. While a sheriff is not bound to levy and execute a justice’s court fi. fa. unless the difference in fees allowed constables and sheriffs for such service be paid him in advance, yet where he has such an execution in his hands, together with money belonging to the plaintiff in fi. fa. sufficient to pay all the costs of levying and enforcing the writ, and the plaintiff in fi. fa. points out, and directs him to levy upon, certain property of the defendant in fi. fa., which the sheriff agrees to do, he can not, in a rule subsequently brought against him by the plaintiff in fi. fa., plead as a reason for not making the money that the difference between the fees allowed sheriffs and constables for making a levy had not been paid him in advance. 2. Where a case is submitted by brief, assignments of error not referred to therein will not be dealt with by this court. Judgment affirmed. All the Justices concurring.