
    Tutt’s Administrator v. Fulgham et al.
    
    Where the sheriff returned that he had received so much money “ in bills of the Mississippi Union Bantheld not to be a satisfaction of the judgment, and an alias awarded.
    IN ERROR from the circuit court of Rankin county.
    Motion in the court below, at the November term, 1840, to erase from the execution, to the last May term of that court, the following credit endorsed thereon, to wit: “Received on this fi. fa. the sum of nine hundred and seven dollars, in bills of the Mississippi Union Bank, 27th February, 1840, John Powell, sheriff.” At a previous term, the plaintiff moved against the sheriff; which was overruled.
    On the motion, the execution was produced, with the above endorsement; and it was proved that John Powell, named in said execution as one of the defendants, was the same John Powell who was at the time sheriff of Rankin county. The defendant in the motion proved, by the record, that at the previous term, a motion was entered against Powell and his securities under the statute, for the amount of the execution and damages; which was overruled, and opinion excepted to.
    Hughes, for plaintiff - in error.
    The court should have sustained motion below; because,
    1st. The sheriff had no authority to enter satisfaction or payment on said execution, being a defendant in the writ. The execution should have been directed to the coroner, and not to the sheriff. See Hutchinson and Howard’s Dig. 303.
    The provision of this statute is, that where the sheriff, by reason of interest, &c. is incapable of acting, then the writ shall be directed to the coroner. The term incapable, in the statute, shows the view which the legislature had of the power of the sheriff. Not that he might with the consent, assent or silence of the party interested, act in any case where he was a party inter•ested; but that in all such cases he should be incapable to act at all; he should have no power to act; but in all such cases the coroner only should act. This is clearly the construction of the statute.
    Again: the sheriff, Powell, did not receive the money. He was not the party receiving and paying, unless a payment from his right hand to his left be good. He received from himself, and paid to himself.
    2d. The sheriff had no authority, from the plaintiff in the execution, to receive any thing other than gold and silver in payment of the execution. If he had returned the execution “ satisfied,” although the satisfaction had been in Union money, the return would have been good, and he would have been liable to the plaintiff in execution.
    P. & L. Lea, for defendants.
    The only error assigned is, that the court below overruled the motion, which was to erase the sheriff’s return and direct an alias fieri facias. It is contended that the motion should have been sustained, because: First, the sheriff was a defendant in the execution. And secondly, the return was that the money had been received in bills of the Union Bank.
    
      The disqualification of the sheriff to execute process where he is a defendant, is for the benefit and protection of plaintiffs, and may be waived by them. Suppose a plaintiff who has recovered judgment against several defendants, the sheriff being one, is de sirous that the execution shall go into the hands of the sheriff, and not the coroner, shall he be barred of his election? and that too, by a provision intended for his benefit?
    The plaintiff may control the process, and the presumption is, that he does so. This presumption is strengthened by the particular circumstances of the case at bar. A motion was made against the sheriff, at May term, 1840, “for failing to pay over plaintiff’s money in this case, made,” &c. Here was a full and distinct recognition of the return. No exceptions were taken either to the competency of the sheriff, or to the funds he had received. But a motion was entered against him for failing to pay over the money made on the execution, in which it is expressly admitted that “ said execution was duly returned satisfied.” For reasons satisfactory to the court, the motion was overruled. At the time the money was collected, the notes of the Union Bank were generally received in satisfaction of executions. It may be that the court below was fully advised that the sheriff had authority to receive them in this case; at any rate, it must be presumed, in the absence of any evidence to the contrary, that the court did right in overruling the motion. And the plaintiffs were precluded by their own action from afterwards changing their ground, and moving to erase the return, when they had sought to charge the sheriff for failing to pay over the money made on the execution, which they acknowledge was duly returned satisfied. And this view is enforced by the fact that one of the plaintiffs receipted to the sheriff for a part of the money.
    It will be observed, that the judgment of the court, in overruling the motion made at the May term against the sheriff, was not excepted to at the time, and is not now sought to be reversed. But at the ensuing November term, a motion was made to erase the sheriff’s return, and to issue an alias fi. fa.; which was also overruled. To this judgment the plaintiffs excepted; and the case is here to reverse it.
    The character and disposition of the first motion preclude an inquiry here as to the sufficiency of the funds received. As to the disability of the sheriff, it may be farther remarked, that he certainly had nothing to do with the issuance of the execution: it was mandatory to him, and he was bound to execute the process. Petersdorf’s Ab., title Sheriff, 6a.
    
   Per Curiam.

The court below erred in overruling the plaintiff’s motion to erase the return of the sheriff, which is in these words, to wit: " Received on this fi. fa. nine hundred and seven dollars, in bills on the Mississippi Union Banknotwithstanding, at the previous term, the plaintiff moved against the sheriff for not paying over the plaintiff’s money; which motion was overruled.

The return of the sheriff, that he took the Union Bank notes, is not a legal return; and the plaintiff is not bound by it, unless the plaintiff had agreed to receive that kind of money or notes in payment; and no such agreement appears.

The judgment of the court below is reversed; the erasure moved for is to be made, and execution to issue for the plaintiff’s money and costs, subject to be credited by the amount which plaintiff has received.  