
    Sims et al. Creditors of Rochelle v. Campbell and Chambers.
    1825.
    
      Columbia.
    
    
      nr equity.
    
    This appeal came up on a motion to set aside an order of the Chancellor. The defendants in this motion recovered a judgment against John Rochelle. After the judgment was obtained, Rochelle mortgaged all his perty, both real and personal, to Colonel Gist. Gist being about to sell the property to satisfy his mortgage, several junior creditors applied to the Court of Equity, to direct the property to be sold on a credit, alleging, that if it should be sold for cash, it would be sacrificed . to the great prejudice of the younger creditors. Colonel Gist consented that it might be sold upon such terms as the Court of Equity should prescribe. The defendantsthe ^ J . r . were no farther parties to those proceedings, than that the plaintiffs applied in behalf of themselves and the other creditors of Rochelle. After the property was sold file defendants applied for the money due. on their judgments, to be paid over to them out of the first money arising from the sale. Upon inspecting the execution which had been issued on their judgment, it appeared, that a payment of five hundred dollars had been paid to the sheriff, and that the word “satisfied” was written upon it. The defendants admitted that they had received five hundred dollars, and only claimed the balance which appeared to be due, and denied that it had been satisfied. Sheriff, being called upon, said he had received only five hundred dollars, and that the entry of satisfaction was not in his hand writing. The deputy sheriff said it was in his hand writing, but he did not now. recollect by what authority he had done it. He presume¿ must have been by order of the sheriff by mistake. The defendant admitted he had paid only five hundred dollars, and that the balance was still due. The other creditors however contended, that as the execution was found in the sheriff’s office with an entry of satisfaction upon it, must be presumed tp have been done by the authority of the sheriff. At all events that he must be answerable for it, and as he was the agent of the plaintiffs in the execution, it was binding on them, and they must look to the sheriff for their money, and could not now come in and take these funds out of the hands of junior creditors. The Court, however, ordered the money to be paid over to the plaintiffs in the execution, the now defendants, with interest thereon, and this was an appeal from that order for the reasons above stated.
    
      Where the written uP?n maybe pro- and thatapaIt9ti11 paid, and this test between cl1'edlt01's ¡ ?nd the execution will notwith-tainits'lenfor balance due; nor would it pre-pmcVfroin^' bearing inter-
    
      May 1825.
    
      W. Thomson, for the appellant.
    J. Johnston, contra.
    The case of Codioise v. Oelston, 10 Johns. Rep. 522, was cited.
   Cuma, per

Nott, J.

This question appears to me as plain as a self evident proposition. It is admitted that the plaintiff in the execution has the oldest claim; that he had indeed the first .lien on the property. A lien which even the sale under the mortgage could not defeat. It is not pretended that it has been actually paid. The debtor himself acknowledges that the balance now claimed is still due. No fraud is alleged against the •party or the sheriff. But some technical rules are attempted to be set up as a bar to the plaintiff’s acknowledged right. First, it is said that the sheriff is the agent of the plaintiff, and therefore he must be bound by his acts. Secondly, this act having been done in the sheriff’s office, it must be presumed to be done by his authority. The sheriff is for certain purposes the agent of the plaintiff, but he is not an agent of his own appointment. He is the agent of the law and the party is no farther bound by his acts than as they come within the pale of his authority. If he recover money on an execution it will discharge the debtor, because the law has reposed that confidence in him, and not because he is th'e agent of the creditor. But he can make no contract or compromise to the prejudice of the plaintiff. Nothing but actual payment will discharge the debt, because his thonty extends only to making of the money. It is true that whatever is done in his office bearing the marks of official authority will be presumed to have been done ii-i by his orders or approbation. But like every other presumption it may be rebutted by stronger evidence. Mistakes may be explained and errors corrected in a sheriff’sis J 1 , office as well as elsewhere. Now, what is the fact in the present instance The word “ satisfied” is found written on an execution. It is equivocal at best because it does not shew in what manner it has been satisfied. It is not pretended to be in the hand writing of the sheriff, , . i ■ t , nor does it appear to be by his authority. It was fore open to explanation. Suppose the sheriff had actually received the money and entered satisfaction in due . form, and it had afterwards turned out that the money was counterfeit, or had been taken away by an older execution. Would it have been a bar to another execution % Most unquestionably not. There is no doubt therefore of the correctness of the order. Even if we put the parties on the ground of two innocent sufferers, as the counsel has called them, (which I do not think a correct position in this case) still he who has the legal priority will be entitled to hold it. It has been contended farther that if they were entitled to receive the debt they were not entitled to interest. To that part of the case js sufgcjent to say, that the confession of judgment conta*ns an agreement to pay interest. The debtor makes no objections and it does not belong to third per-sons to say that they may not contract for themselves. The motion must be refused.

The sheriff '¿e piamtlffin ?n execytion> purposes; but created bythe the further bound ^fan''as^hey c°me within the pale of his authority.

whatever done to the sheriff’s office, bearing of thority, will tohave3 been do“e kf his authority; like all sumptions, may,be rebutted by stronger evidence. b^cowectedy heveas else"

márked^sa" dsfi^d” may to be satisfied, maintain its creditors.^

The lien of a judgment is good for the interest which may accrue on it, as for the principal debt.

Decree affirmed. 
      
       See post, the case of Winslow v. The Assignees of Antrum.
      
     