
    John Anketell vs. George Torrey, Phillip O. Hughes, Daniel G. McPherson, and Dugal Torrey.
    It is fully settled that no payment of an execution in anything short of lawful money, to wit, coin of the United States, will amount to a satisfaction, unless it be with the consent of the plaintiff, in the execution.
    The consent of a plaintiff, in an execution to receive bank notes in satisfaction thereof, may be express or implied, and all facts and circumstances, tending to show such consent, may legitimately be allowed to go to a jury.
    A. made a motion ¡¡.gainst a sheriff and his sureties, for failing to pay over money collected on an execution ; and the sheriff was permitted to prove that he collected the amount of the execution, in the notes of the Mississippi Union Bank, and notified the attorney of A. of that fact; and the attorney expressed no dissatisfaction respecting the character of funds collected; that about the same period, A. was in the habit of receiving from his agents and attorneys at law, without objections, the same kind of funds; that Union money constituted the circulating medium of the country, at that time, and it was uniformly received by clients; that the money was collected at the December term, 1839, and the motion was not made, until the November term, 1843, all of which evidence was objected to by A., but was permitted by the court to go to the jury, as tending to show the consent or acquiescence of A. to the receipt of the Union money in satisfaction of his execution: Held, that the evidence was legitimate, and not properly permitted to go to the jury.
    Upon a motion against a sheriff and his sureties, for failing to pay over money collected upon an execution, where it was proved that the amount of the execution was collected in the notes of the Mississippi Union Bank, with the consent of the attorney of the plaintiff; that Union money at that time constituted the general circulating medium of the country, and was uniformly received by clients; that the plaintiff about the same time was in the habit of receiving from his agents and attorneys at' law, without objection, large sums in the same kind of funds ; that the money was collected at the December term of the court in 1839, and the motion was not made until the November term, 1843; the court could not properly instruct the jury that there was no legal evidence that the plaintiff authorized the sheriff to receive the Union Bank notes.
    
      EeRoe from the circuit court of Jefferson county; Hon. Charles C. Cage, judge.
    This was a motion made at the November term, 1843, of the circuit court of Jefferson county, by John Anketell against George Torrey, as sheriff, and Philip 0. Hughes, Daniel G. McPherson and Dugal Torrey, as sureties on his official bond, for the failure of the sheriff to pay over fourteen hundred and seventy-three dollars and eight cents, collected by him on an execution in favor of said Anketell against Isaac R. and Wilson W. Wade, returnable to the December term, 1839, of said court. The defendants filed three pleas to this motion: 1st. A plea of tender. 2d. That by and with the consent and approbation of the attorney of record of the plaintiff in said execution, and with the consent and authority of the plaintiff, the said George Torrey, as sheriff, did collect and receive, in satisfaction of the execution in the motion mentioned, the notes of the Mississippi Union Bank, and he was always ready and willing to pay over the same to the plaintiff, and that he did offer and tender them to the plaintiff’s attorney of record, and that he then tendered the same in open court. 3d. That the execution, mentioned in said motion was satisfied by the payment of the sum therein named in the notes of the Mississippi Union Bank, which defendants averred, was a lawful bank of the state of Mississippi, and at that time paid specie at her counter on all demands presented, which were due; and her notes circulated, paid and received, and in all business transactions were regarded as money. Issue was taken on the first and second pleas, and a demurrer filed to the third, which was sustained by the court. Upon the trial the plaintiff read to the jury the official bond of the sheriff, which was in the ordinary form. It being then admitted that William R. T. Chaplain, the attorney of record of the plaintiff in the execution, mentioned in the motion,. died in September, 1840, the plaintiff rested his case. The defendant then produced in court the notes of the Mississippi Union Bank, and was permitted to prove, by Andrew Logan, that in 1839 he paid to William R. T. Chaplain, as attorney for John Anketell, about fifteen hundred dollars in the notes of the Mississippi Union Bank; and in 1840 he paid to John Murdock, for said Anketell, between four and five thousand dollars in current notes of the banks of Mississippi, and that he never heard of Anketell making any objections to the said payments; —by John B. Thrasher, that in 1839, he, as attorney for Anketell, received the notes of the Mississippi banks, and he believed of the Mississippi Union Bank, in payment of debts due to Anketell, and that Anketell received the notes from him without any objections; that he did not recollect whether Anketell gave him any instructions as to the kind of funds to be collected; that Union Bank notes were received by general consent throughout the country as money; that as an attorney at law he received for collection in 1838 and 1839 a large number of claims, and collected large amounts in the current bank notes of Mississippi, and the attorneys of the state generally received bank notes up to the latter part of the year 1839, after which they generally refused to receive them. The currency remained good up to that time. None of the banks paid specie except the Mississippi Union Bank, which paid such of her issues as were due up to 1st January, 1840; that her notes were better, in December, 1839, in New Orleans, than they had been prior to that time; but they were not then at par; that his clients uniformly received from him payment of their claims in that kind of money, without objection ; that he did not recollect of any instance of a departure from this rule by the lawyers of Port Gibson ; that Mr. Chaplain about that time received such currency for his clients; that he believed the notes of the Union Bank were the best currency, at that time, in Mississippi; that he knows Torrey was about that time punctual in paying money collected by him as sheriff, and believes the most punctual sheriff with whom he did business.
    J. B. Coleman proved that he was at Fayette in the fall of 1839, and about leaving for Port Gibson, when Torrey requested him to inform Mr. Chaplain, that he had collected the money in the case of Anketell’s, in Union Bank notes; that immediately on reaching Port Gibson he called on Mr. Chaplain and delivered Torrey’s message; that he did not recollect Mr. Chaplain’s language, but thinks he expressed no dissatisfaction at the receipt of Union Bank notes, though he thought Mr. Chaplain expressed dissatisfaction because Torrey did not send the money to Port Gibson, or at the idea of having to go to Fayette after it; that Union Bank notes were the best currency at that time in Mississippi. To all of which testimony the plaintiff objected, and the objection being overruled the plaintiff excepted. No further evidence being offered on either side, the plaintiff asked the court to charge the jury that “ there was no legal proof that Torrey was authorized by the plaintiff to receive said Union Bank notes in satisfaction of said executions, and that without such proof the jury were bound to find the second issue for the plaintiff;” which charge the court refused to give, but at the request of the defendant charged the jury that “ if they believed from the proofs aforesaid, that the plaintiff authorized the sheriff to receive the Union Bank notes, they should find said second issue for the defendants, otherwise for plaintiff.” To which plaintiff excepted. The jury found a verdict for the defendants, upon which judgment was entered; to reverse which the plaintiff prosecutes this writ of error.
    
      G. Winchester, for plaintiff in error.
    This court has decided, that an attorney has no authority to receive anything in satisfaction of an execution but gold and silver, without an authority from his client, and that his general authority as an attorney is not sufficient. 2 S. & M. 81.. Also that a sheriff has no authority to receive anything but gold and silver, without the authority or consent of the plaintiff. 2 S. & M. 514.
    In this case, it is attempted to prove that the attorney consented to the authority of the sheriff to receive Union Bank notes, because when informed that the money had been collected in Union Bank notes by the sheriff, his informant does not recollect that he made any objections thereto.
    This certainly is no proof of an authority from the attorney. But even if the consent of the attorney to the act of the sheriff could be implied from such proof, yet the attorney could not bind his client by such consent. For if, by his general authority, he could not receive anything but gold and silver himself, he certainly could not by his general authority, give authority to the sheriff to do so.
    Then as to the proof that the plaintiff authorized the sheriff to receive the 'Union Bank notes.
    Proof that he had received from another debtor Union Bank notes in payment of a debt, or that another attorney in other cases had collected executions for him and paid in Union Bank notes, or that it was customary about the time for sheriffs to collect executions in Union Bank notes, and that attorneys received them from the sheriff, is no proof that the plaintiff in this case authorized or consented to the sheriff’s collecting his execution in Union Bank notes. The court erred in not ruling out the evidence, and it also erred in refusing to charge the jury that there was no legal proof that the plaintiff authorized the sheriff to receive the Union Bank notes.
    
      Montgomery and Boyd, for defendants in error.
    It will be seen that there are but two questions involved in this case. 1st as to the admissibility of the evidence under the issue. 2d as to the propriety of refusing the instruction moved by plaintiff, and giving the instruction mentioned.
    As to the first point, we think there can be but little doubt; it was competent to prove such circumstances as were calculated, by their combination, to satisfy the mind of the jury, that the plaintiff did consent to receive the then currency of the country, in satisfaction of his judgment. One fact sought to be proved was, that plaintiff, in his business transactions, was in the habit of receiving such funds as others did. The evidence of Thrasher and Logan tend to show that the plaintiff received the bank notes which were then current, without objection. Although Logan did not pay the money direct to plaintiff, he paid to his agent full five years before, and had not heard from plaintiff since, which are strong circumstances to show that he authorized those agents to receive such funds.
    The evidence of Thrasher is more direct. He collected funds of the same description for plaintiff, about the same time and paid them over, and no objections were made, which shows the willingness 'of plaintiff to submit to what was then the usage of the country, as is fully shown by Mr. Thrasher’s deposition. Up to the time the funds were received by Torrey, all the collecting attorneys were in the habit of receiving such funds from sheriffs in payment of executions. This general acquiescence on the part of lawyers, acquiesced in by their clients, was prima facie justification to the sheriff, and when taken in connection with the further facts, that Anketell was in the habit of receiving such funds, under similar circumstances, and that his attorney in that particular case made no objections when informed of the funds collected, were certainly competent, and as we infer from the verdict sufficient to authorize the jury in finding the issue for defendants. As circumstantial evidence tending to prove plaintiff’s consent, it was therefore admissible. Freem. R. 396; 2 How. S. Gt. R. 258.
    As to the instructions, we think it is only necessary to read them to satisfy the mind the court was correct. What right has a court to charge a jury that there is no evidence of a particular fact before them, if any proof tending in the remotest degree to establish the fact, has been admitted'?
    
      Eustis, for plaintiff in error.
    1. There was no authority from either the plaintiff or his attorney, preceding the collection.
    2. The silence of the attorney, when the kind of paper collected was communicated to him, is no ratification by the principal. It is the first time we have heard that the omission of an agent is an act of the principal.
    3. The attorney had no more authority than the sheriff to authorize a collection in anything but money on execution. The attorney had no such license to confer on the sheriff. Keller v. Scott, 2 S. & M. 82; Oasquet v. Warren, Ibid. 524; 5 How. 246; Morton v. Walker, 7 How,; McFarland v. Grwin, 2 How. U. S. Sup. Ct. R.
   Mr. Justice ThacheR

delivered the opinion of the court.

The plaintiff in error filed a motion in the circuit court of Jefferson county against the sheriff and his sureties on his official bond, for failing to pay over money collected upon execution. The defence relied upon by the sheriff was the collection of the amountof theexecution in the notes of the Mississippi Union Bank with the consent of the attorney-at-law of the plaintiff in error, who was the plaintiff in the execution, which consent was authorized by the plaintiff in error. The first ground relied upon as error was the refusal of the circuit court to rule out of the evidence testimony to the following effect, to wit: That the plaintiff, at the period of the collection of the amount of the execution in question, was in the habit of receiving in payment of debts due him Union Bank money, and did receive from one of his agents, the sum of $1500, and from another the sum of between $4000 and $5000; that from another of his attorneys-at-law, at the same period, he received collections in his favor in similar funds without objection, and that such funds constituted the currency of the country at that time, and were uniformly received by clients; and that the sheriff communicated information to the attorney of the plaintiff of the fact of his collecting the amount of the execution in Union Bank money, who received the information without any expression of disapprobation respecting the character of the funds collected. It is fully settled by this court, as well as elsewhere, that nothing short of the payment of the amount of a judgment in lawful money, that is, in the coin of the United States, is a satisfaction of an execution, unless the consent of the plaintiff in an execution permits a different satisfaction. The consent or acquiescence of a plaintiff in an execution to receive bank notes in satisfaction of his judgment, may be express or implied, and all facts and circumstances tending to show such consent, recognition, or acquiescence, may legitimately be allowed to go to a jury. The evidence complained of in this case, so far as it went, had a direct tendency to show the acquiescence of the plaintiff in the execution in the receipt of such funds in the payment of the debts due him, the one in question as well as others. The record shows also that the return of the execution was made at the December term, 1859, and the motion was not filed against the sheriff until the November term, 1843, an interval of nearly four years. In view of this fact, the evidence objected to was properly admitted, as showing an implied sanction by the plaintiff in the action of the sheriff upon the execution. The circumstances of this case are very like that of Buckhannan et al. v. Tinnin et al. 2 How. S. Ct. R. 258, wherein similar views of the law prevail.

It is hardly necessary to add that the court below did not err in refusing to charge the jury that there was no legal proof that the plaintiff authorized the sheriff to receive the Union Bank notes. According to the foregoing view of the law, such a charge would have been directly against the facts as presented by the evidence.

Judgment affirmed.  