
    Planters’ Bank, v. Scott et al.
    
    The receipt of money by a sheriff on an execution after the elapse of the term to which it is made returnable, does not bind the plaintiff.
    An agreement between the sheriff and the defendant, for the payment of an execution, in anything else than the legal currency, will not satisfy the judgment.
    ERROR from the circuit court of the county of Copiah.
    The plaintifF in error obtained a judgment against the defendants, for seven thousand and odd dollars, and issued execution thereon. The sheriff returned the execution, with this endorsement thereon, to wit: “ This execution was not levied on the property of the defendants, nor is any money made by sale of. property of the defendant. August 27th, 1838. (Signed,) Thos. Holliday, sheriff.”
    On the 18th November, 1839, another execution issued, returnable to May term, 1840. The defendants moved the court to quash the execution, and to enter satisfaction of record on the judgment in the case. 1st, Because said execution is irregularly issued, there being no judgment in this court to predicate the same upon. 2d. Because if any such judgment exists, the same was, on 27th August, 1838, fully paid, with all costs and'interest thereon, to Thomas Holliday, at that time sheriff of Copiah county, and having in his hands an execution thereon.
    The evidence given in support of the motion, was the two executions aforesaid, and the following writings, to wit: a receipt of said sheriff to John W. Scott, one of the defendants, for the full amount of the judgment and execution, dated August 27, 1838, and a written agreement between the said sheriff and Scott, of the same date, viz: “ Planters5 Bank v. John W. Scott et al. In Copiah circuit court, 1838. In this case I have paid off to Thomas .Holliday, sheriff of Copiah county, money of the Citizens’ Bank of Madison county. Now if the said bank, or the attorney of the bank refuses to receive this money of Thomas Holliday, or he (Holliday) cannot in any way force it off, then I agree to take the same kind of money back, and let the execution be reinstated against me, as it stood before the sheriff’s. receipt to me. August 27th, 1838. (Signed,) John W. Scott.” Also, the written statement of the plaintiff’s' attorney, setting forth that the Planters’ Bank, and their said attorney, refused to have any thing to do with the Citizens’ Bank money of Madison county, and that only four thousand dollars of the money due on the execution had been received by plaintiffs or their attorney. It was further stated in the record, that the above was ail the testimony adduced on the motion; whereuppn the court systain-ed the motion, quashed the fieri facias, and ordered satisfaction of the judgment to be entered.' To which opinion and judgment of the court the plaintiffs excepted, and sued out this writ of error.
    McMurran, for plaintiff in error.
    We are at a loss to discover the shadow of a- reason for the opinion'of the court; in determining that 'the execution or judgment had. been satisfied. Even if the sheriff had received the notes of the Citizens’ Bank as an absolute payment, there is no principle which will sustain the position that the plaintiff’s execution is thereby satisfied. We are aware that when the sheriff levies an execution upon lands or goods, which are subject to the execution, it is in contemplation of law a satisfaction of the execution. But if the property, levied on should perish before the sale, or if'when sold, the proceeds amounted only to a part of the debt, it would be satisfied only pro tanto. And if the sheriff wastes the goods, or gives them away, it is the plaintiff’s loss; for the sheriff, in making the levy and taking the property, acted within the scope of his authority, in the discharge of his official duties. But if the sheriff departs from the line of his official duty, in taking, conditionally or unconditionally, depreciated bank paper or notes,, in payment of an execution, it is not in law a satisfaction. It is done without warrant or authority of law, and the plaintiff is not bound by it..
    Thus, in the case of Codwise v. Field, 9 John. Rep. 26-3, where a ca. sai issued against the sheriff, and was placed in the hands of the proper officer for execution: the officer being indebted to the sheriff, gave him a receipt in full upon the execution, but no money was actually paid, if being ágreed between them that the receipt should be considered as the payment of so much money. But the plaintiff would not consider it as a payment, and issued another ca. sa. upon which the defendant was arrested, and a motion was made on the part of the defendant to set aside this ca. sa. But the court denied the motion. They decided that “there was no payment or satisfaction of the first execution,”— “ it must be an actual and absolute payment in cash to the officer for the plaintiff.” It must be a payment in cash, in the legal currency of the country, and not in the notes or promises of either banks or individuals.
    So in the case of The Bank of Orange county against Wake-man, in 1 Cowen’s Rep. 46. In that case the sheriff took from the defendant a part of the money in cash, and for the balance due on the execution, be took from the defendant a negotiable promissory note in payment in full of the execution in his hands, and entered satisfaction upon it. He acted without any authority from the plaintiff or his attorney, who never received any part of the monies due on the execution. Upon these facts, the defendant moved the court to enter satisfaction upon the record j which motion the court overruled, and upon the express ground, “ that the receipt' of the note in payment, and the discharge and return of the execution by the officer satisfied, were not in the regular and legal course of his official duty.”
    Now, how much stronger is the case before the court, as it regards the rights of the plaintiffs? In the cases cited, satisfaction was actually entered by the proper officers upon the executions, and in the case in Cowen, the note was taken by the officer from the defendant as an absolute payment. _ But in the present case, no satisfaction was endorsed upon the execution at all, and the worthless notes of the Citizens’ Bank were not received by the sheriff as a payment. It was agreed in writing between the sheriff and the defendant Scott, that the notes should only amount to a payment if the plaintiffs or their attorney would accept of them, and that if they refused to accept of them, (and the record shows that they did refuse,) the execution should remain open, and in as full force as it was when it came into the sheriff’s hands. Why, the question is too plain, too clear upon principle and authority, to be discussed at any greater length, or supported by a reference to any further authorities, on behalf of the plaintiffs, before an intelligent court.
    There is another reason assigned for the motion in the court below: that there was no forthcoming bond in the case, and forfeited, upon which the execution had issued. But there is nothing in the record or evidence before us, showing that there was not a bond and judgment upon which the execution had regularly emanated, and this court will hardly presume that none existed. This ground was of no weight with the court below, and very properly so, as there were neither facts nor law to support it. And if that court had decided as correctly upon the other, point, this court would never have been troubled with the subject.
    We therefore conclude that this court will readily reverse the judgment of the court below in sustaining the motion, and will by the judgment of this court overrule the motion of defendants, and will allow the plaintiffs to proceed to realize, by execution, what is shown by the record to be due them.
    Quitman, on the same side.
   Mr. Justice Ttjiineb.

stated.the case, and delivered the opinion of the court.

It appears from the record before us, that the execution on which the return of the sheriff, that he had not levied, &c. was made, was returnable to May Term, 1838; and it does not appear that any other execution issued until the 18th of November, 1839. The sheriff therefore, had no authority to receive or receipt for the plaintiff’s money, on the 27th of August, 1838.

But, even if he had an execution at that time in his hands in the case, he had no authority to receive in payment Citizens’ Bank money, or any other than the legal currency of the country ; and the agreement between him and the defendant, Scott, was a mere private agreement between themselves, unauthorized by law, and not sanctioned by the plaintiffs or their attorney.

The repeated decisions of this court, the common law, and the adjudged cases in other states, Bully sustain the court in reversing the judgment of the court below. See 9 John. Rep. 263. 1 Cowen, 46.

The judgment is reversed, and cause remanded with leave to the plaintiffs to sue out execution in the court below.  