
    Henry Bright et al. vs. Thomas Ross et al.
    While the doctrine is well settled, that a sheriff hasno rightto take depreciated bank-notes in payment of an execution, and that if he does so, the plaintiff will be entitled to a new execution, yet the plaintiff may consent to the taking of such notes, either expressly or impliedly ; but it is the duty of the party who sets up such payment, to show either the plaintiff’s authority to the sheriff to take them, or that he afterwards ratified the act by his acquiescence.
    Where one of the defendants in an execution paid to the sheriff depreciated bank-notes, and the sheriff returned the execution satisfied ; and the defendant, before the return of the execution, informed the plaintiff’s attorney of the payment in depreciated paper, and the attorney at the time, refused to recognize the payment; but at the term of the court next subsequent to the payment in bank-notes, and the return of satisfaction, another attorney at law, without authority from the plaintiff in execution, and not knowing the facts of the case with reference to the payments, out of friendship to the attorney for the plaintiff, seeing the execution returned satisfied, and that the sheriff had not paid the money over, entered a motion against the sheriff and his sureties, for a failure to pay the money over, and obtained a judgment therein against the sheriff and his securities for the amount thus paid to him ; upon which judgment an execution was issued, and returned nulla bona; and the plaintiff in execution took no steps for five years after the payment and return of satisfaction, to obtain a new execution against the defendants in the first judgment; it was held, that the facts of the case, constituted an acquiescence on the part of the plaintiff in the execution, in the payment, and a ratification of it.
    In such case, the appearance of the attorney at law, and the entry of the motion, and the rendition of the judgment against the sheriff and his sureties, though made without the knowledge of the plaintiff in the motion, and without the attorney's being employed by, or for him, will be binding on the plaintiff in execution, and will be regarded as his act. The doctrine of election does not apply to the case, where a party has two remedies, both of which he may pursue at the same time, as where a sheriff has made a false return of satisfaction, and the plaintiff in execution may pursue both the sheriff on his bond, and the original defendants; but it applies to a case, where a party having several remedies to enforce the same right, must abide his election; or where he may have recourse against any one of several defendants, and having elected as to one, is precluded as to the others.
    In error from the circuit court of Kemper County; Hon. Ar~ mistead B. Dawson, judge. (Judge Dawson having been of counsel for one of the parties in the case below, by the agreement of the parties, Jacob R. Metcalfe, Esq. presided at the trial of this suit in his stead.)
    On the 2d of April, 1845, Henry Bright and Wm. J. Ledyard, under the firm of Bright & Ledyard, by Messrs. Baldwin & Bliss, their attorneys, gave notice to Thomas Davis, Jr., Michael Ross, and Lewis Stovall, that they would, on the 30th of April, 1845, move the circuit court of Kemper county to set aside and vacate the return made by William Killen, late sheriff of the county of Kemper, of “ satisfied ” on an execution issued from the clerk’s office of the court, in the name of Bright & Ledyard against them, dated December 9th, 1839, for $1143-87, and $30-37 costs, returnable to the May term, 1840, of the court; for the reasons, 1, that the money had not been paid to Killen; 2, if any thing was paid, it was not in lawful currency; and 3, because Killen received notes of the Mississippi Union Bank, then depreciated below their nominal value.
    The motion was tried at the March term, 1846, when it was proved by J. Bliss, Esq., that as attorney for Bright & Ledyard, he had obtained the judgment against Davis and Ross, under an execution upon which Stovall had subsequently executed a forthcoming bond which was forfeited. The management of the case was intrusted solely to him; and he, residing in Alabama, and having no confidence in the Mississippi Banks, and especially the Union Bank, had instructed Killen, the sheriff of Kemper, not to take Union Baulc and some other Mississippi bank notes. That at the return term of the execution on the forfeited bond in the spring of 1840, he could not find either the execution or the sheriff; and on application to Ross, one of the principal defendants, he was told that the execution had been paid in Union Bank notes; which were about twenty per cent, below par; that he (Ross) had offered them previously to one of the plaintiffs, who resided in Mobile, Ala., who refused to take them because they were depreciated, and he had paid them to the sheriff; the witness told Ross he would not recognize the payment, but would pursue it further; he had never received the money said to have been paid Killen, nor authorized any one to receive it. Killen had gone to Texas. The witness had never authorized any rule or motion against Killen for not paying this money over, nor had the plaintiffs, to his knowledge, ever authorized any one; nor had he or the plaintiffs, to his knowledge, ever authorized the reception of the Union Bank money, or sanctioned it; on the contrary, he had forbidden the sheriff to take it; the plaintiffs had refused it when offered it, and he had declined regarding it as a payment.
    Ephraim Smith also proved, that Ross had told him that he had paid the execution in Union Bank notes. The execution was read, and had this return on it: “Satisfied in full, March 16, 1840, William Killen, sheriff.”-
    The defendants then read the record of the proceedings in a motion against Killen as sheriff, and his sureties on his bond, made at the October term, 1S40, of the Kemper circuit court, by Bright & Ledyard, for not paying, upon demand previously made, the money collected on the execution referred to. The motion was in the ordinary form, and signed “ Joseph G. Baldwin, plaintiff’s Attorney.” The record showed that notice was duly served on the defendants, and on the 30th of October, 1840, a judgment obtained against them for the sum of $>1236-54, with twenty-five per cent, damages, and eight per cent, interest from the time of the demand, which the judgment recited was proved to have been made on the 21st day of October, 1840. The record also showed that an execution issued on this judgment in favor of the plaintiffs to the October term, 1841, which was returned “no property found,” as to all the defendants.
    Joseph G. Baldwin, on the part of the plaintiffs, then proved, that he, without any authority from the plaintiffs, and without their knowledge, or that of their attorney of record, (Bliss) had entered the motion referred to against the sheriff and his sureties, and had prosecuted it to judgment, as shown by the record. He was at the time the motion was entered, the partner in the practice of the law, of Bliss, and both resided in Alabama; he, however, attended to the Mississippi business; but with the old business of Bliss, (and this case against Davis, Ross, and Sto-vall, was part of Bliss’s old business,) he had no concern, and was not employed or expected to attend to it. Bliss had asked him to look after his old Mississippi business when he was attending the courts in this state, but had never given him any special directions with reference to it, nor had he any interest or part in it. Having himself at the October term, 1840, various motions to make against Killen for money collected in cases of his own, as attorney; and seeing this one of Bliss’s in the same condition, and knowing nothing whatever of the nature of the payment, or of the facts connected with it; and understanding that Killen was lurking in the neighborhood, having before that absconded, and that he could probably make a demand upon him for the money, and get service of a notice upon him; he out of friendship and regard for Bliss, and kindness to him, and supposed care for his interest, without authority or knowledge of Bliss or plaintiffs, entered the motion, and obtained the judgment against the sheriff and his sureties as stated. Nothing had been made out of the sheriff or his sureties. The witness and Bliss had now been jointly authorized by the plaintiffs to enter the present motion.
    The court decided on this state of fact, that the motion must be overruled; and the plaintiffs below sued out this writ of error.
    
      J. G. Baldwin, for plaintiff in error, contended,
    1. That the taking of the money (so called) was without authority, and the return, based upon such taking, no satisfaction. 5 How. 246; lb. 621; 3 S. & M. 271; 7' How. 453; are decisive of this point.
    2. It cannot be contended, that the mere fact of the taking of one remedy, rightful or wrongful, destroys the right to another. There are frequently various remedies, and on diver parties, for the recovery of a right, none of which are lost by a resort, without satisfaction, to others. The going on bail bond, and pursuing original debtor, is an example. 8 Johns. 364. Also, suing sheriff for not making money, and running another execrn tion against defendant, &c. 7 Johns. 499; 5 How. (Miss.) R. 624.
    3. If the court should hold that the remedies are inconsistent, and that the taking of one such, under any circumstances, is an election, then, we contend, it could only be such in this case, viz., that the ruling of the sheriff was done as an election, and with full knowledge on the part of the plaintiffs of the remedies wherefrom the election was to be made. “Election,” says Dyer, (Dyer, 281 a,) “is the free and spontaneous separation of one thing from another, without compulsion, consisting in the mind and will.”
    Mr. Baldwiu cited also, and commented on, Dash v. Van Kleeck, 7 Johns. 477; McElroy v. Mancius, 13'Johns. 121, to show that the rule and judgment against the sheriff and sureties do not conclude plaintiffs in this motion, unless it be shown that they knew, at the time of taking the rule, that they had a remedy upon the defendants; that is, that the sheriff had taken payment in depreciated paper. Let us inquire how that fact is.
    
      4. The general rule is admitted to be, that notice to the agent, or attorney, is notice to the principal. Bat that rule does not embrace this case. Because,
    1st. In the first place, “ the agent must come to the knowledge of the fact while he is concerned for the principal, and in the course of the very transaction which becomes the subject of the suit.” 13 Yes. 120, and authorities cited in note. Now, although the fact stated by Ross might have been evidence of, or in some “ transaction,” yet it cannot be contended' that the admission itself was any “ transaction ” the subject of a suit, or was made “in the course of any transaction the subject of a suit.”
    2d. But constructive notice does not hold as between the parties to the transaction. “ It is only where the equitable rights of third persons are concerned, that notice of facts, communicated to an agent or attorney, is held to be notice to the principal,” Champlin v. Laytin, 6 Paige, 189, 203.
    3d. In the third place, the attorney is only “ the special agent for his client, to ask for him in court not to make private or executory contracts.” 2 Call, 498 ; 1 Bibb, 89. Nor to receive communications. At any rate, it cannot be pretended that Bliss was the agent of plaintiffs to hear Ross talk. It would be absurd to hold, that an attorney at law is expected or bound to listen to whatever he may hear the adverse party, or any person else says about his case; and, whether he believes it or not, for his client to be held bound by it.
    4th. Bliss’s powers, according to some of the authorities, ceased with the obtaining of judgment and return of satisfaction. 1 Dev. 467; 1 Hill, 184; 8 Johns. 361; 2 Bibb, 382; 2 J. J. Marsh. 184. So that he was not attorney, if this be law, at the time of this communication.
    5. But suppose they did know it: the question then is, as to the effect of the judgment taken in their names. There is some conflict of authorities upon the question, whether the unauthorized acts of an attorney, or rather the acts of an unauthorized attorney, bind the party for whom he appears. 1 Term R. 62; 6 Johns. 318; 6 Pick. 483; 3 Ham. 411, 518; 6 Litt. 186; 4 lb. 334; 4 Mon. 377; 3 J. J. Marsh. 532, are, that they do not.
    
      But whatever may be the weight of authority upon that subject, it is clear that an attorney has no power, although regularly employed, to release a debt without satisfaction, to enter a re-traxit, nor, as in our state, to receive any thing, or authorize the sheriff to receive any thing but gold and silver in payment of a debt. 10 Johns. 221; 3 J. J. Marsh. 532.
    If this be so, it is difficult to see how an attorney could make an election for another, whereby he could release a debt without satisfaction, and give effect, thus indirectly, to the taking of depreciated money; and that, too, without knowing he was making it. If he could not authorize the sheriff to receive depreciated paper, can he, by merely entering a rule against the sheriff, release the defendants in execution, and in effect ratify the sheriff’s act?
    6. It is contended, that the judgment against the sheriff is conclusive of all the recitals and facts in the record, when offered as evidence in this proceeding.
    Without wishing to disclaim Baldwin’s authority, for aught the record purports to contain, as between the parties to the judgment, we say that a judgment is only admissible, as an estoppel, between parties and privies, and on the points actually decided. 1 Dev. &Bat. 486; 1 Stark. Ev. 186. That it is only evidence between parties and privies, see 3 Conn. 316, except to the fact of its own existence. So that, in any other proceeding, the authority of the attorney may be questioned, or the fact of the plaintiff on record bringing the suit may be.
    The cases show that this may be done. 6 Pick. 483; 1 Term R. 62 ; 4 Day, Conn. R. 4S0 ; 6 Johns. 318.
    
      7. In answer to the objection of lapse of time, we say there is no statute of limitation to motions of this sort. The judgment is in full force until satisfied, and we have a right to remove, at any time while it is in force, all impediments to enforcing it.
    The decisions of this court cited, go upon the ground, that the receiving of depreciated paper by the sheriff is void until ratified by the plaintiff. Can mere silence be a ratification, espe-daily when the return is in general terms, and gives no notice of its own falsity, and there is no proof of any other knowledge?
    But the case of Buchhanan v. Tinnin, 2 How. (U. S.) R. 259, is relied on. That case is not authority in this cause.. It differs in these important particulars. 1st. It appeared, by the officer’s return, that such paper had been taken, and the court presumed the party knew that return, as it was a public record.
    .2d. It appeared, by the language of the return, (which was to be taken as true as long as it stood,) that there had been authority to collect in that medium.
    3d. Injustice, it was thought, might be done the officer, by suffering the return, under the circumstances of that case, to be set aside.
    4th. There was no circumstance to show unwillingness to take that medium, or any caveat to the officer or party.not to take or pay in it.
    5th. It did not appear that the plaintiff did not receive the depreciated paper.
    The analogies of law are in our favor. A rule against the sheriff for false return is not limited to two years, or any period short of the general statute which limits suits against him. So also for not returning execution; and a motion against the sheriff for not paying over money, may be made after his official term expires. 1 Stew. & Port. 486.
    A motion for amendment of judgment, nunc pro tunc, may be made at any time, there being no limitation fixed by law. Graves v. Fulton, 7 How. 592 ■ Miller v. Anderson, 1 Littell's S. 0. 170.
    8. That the sheriff should have been a party to the motion, is contended for by defendants. He was out of the jurisdiction of the court. Besides, in 7 Howard, 413, the motion was sustained without his being a party, though this question was made.
    
      Charles Scott, on same side.
    1. It is clear that the sheriff could receive nothing but money or its equivalent in satisfaction of the execution, and therefore the taking of depreciated bank notes by him was no payment or satisfaction. See 5 How. Rep. 246, 621; 7 lb. 554, 408; 3S. &M. 271.
    2. Then the payment is not a good one, and the plaintiffs are not bound by it, unless they agreed to receive it in satisfaction of the judgment. See 5 How. Rep. 624; 7 lb. 408.
    3. The plaintiffs did not only refuse to receive it, but the defendant, (Ross,) before he paid it to the sheriff, admits that he knew it would not be received by plaintiffs, for he stated he had offered the same kind of money to plaintiffs, and they refused it.
    It has been decided, that where depreciated bank notes were received in payment by a sheriff, and execution returned satisfied, defendant at the time knowing that such currency had been refused by plaintiff, that the return of the sheriff was false and fraudulent, and ought to be set aside. See 7 How. Rep. 408.
    4. But it may be contended, the rule against the sheriff, &c. amounts to a recognition of the satisfaction of the execution. The attorney who made this motion had no authority to do it. He was not the attorney of record. Even the attorney of record, like the sheriff, could receive nothing in satisfaction but legal currency. His authority is to collect the money, and if he had received the depreciated notes from the sheriff, his act would not have been binding on the plaintiffs. See 1 How. Rep. 577; 3 lb. 314; 3 Stewart, 23; 2 J. J. Mar. 71. Then if the attorney of record could not receive any thing but money, no act of his could amount to a recognition of the act of the sheriff, because if he could not receive depreciated bank notes, of course he cannot recognize their reception by the sheriff, who also had no power to receive such paper.
    5. If the lawful attorney could not recognize the act of the sheriff, a fortiori, an attorney, who is not employed by plaintiffs, could not do it.
    6. But the motion against the sheriff, even admitting the authority of the attorney to make it, does not preclude the plaintiffs’ motion to set aside the return of the sheriff. This point has been expressly decided by this court. 5 How. Rep. 624.
    
      
      Henry Gray, for defendants in error, contended,
    1. That the sheriff’s return is conclusive, and cannot be impeached, except in a direct proceeding to which the sheriff is a party. 3 Cowen & Hill’s Notes to Phil. Ev. p. 820, n. 582; lb. p. 1087, 1088; 3 Littell, 129; 1 Peters, C. C. R. 441. The case of Anderson et al. v. Carlisle & White, 7 How. 408, does not decide that the sheriff is not a necessary party. In the case before the court, it is no excuse for not making the sheriff a party that he lives out of this state. The statutes making, in such a case, no innovation on the common law rule, he must be pursued to what is equivalent to outlawry. 1 Chitty’s Plead. 42.
    2. The payment, against the sheriff and his sureties, is a satisfaction of the judgment against the defendants. 1 Ala. Rep. 257.
    3. By proceeding against the sheriff and his securities, after notice that the payment was made in uncurrent funds, the plaintiffs have made their election of remedies, and cannot proceed against the defendants. 3 Phil. Ev. by Cowen & Hill, p. 823; 2 How. U. S. Rep. 258; 7 Johns. 500. The attorney of the plaintiffs knew, at the return term of the execution, that the payment was made in uncurrent money, and whether the plaintiffs themselves had notice or not makes no difference; it is sufficient to charge them with notice, that their attorneys had notice. Story’s Agency, 131, § 40; 1 Story’s Eq. Jur. 408; 4 Wheat. 466; 2 Kinne’s L. Comp. 192; 9 Johns. 164, and cases cited in note (v) in the margin. It is no answer to this that the plaintiffs refused to receive the money from Ross, for then the money was not paid to the sheriff; nor is it any answer that Bliss refused to ratify the payment, for he had no authority to do so.
    4. The plaintiffs cannot at law deny the authority of the attorney to take the proceedings and judgment against the sheriff and his sureties. The record is conclusive, and their remedy is against the attorney. 6 Johns. 296 ; lb. 34; 1 Tyler, 304; 7 Pick. 137; 1 Cond. Rep. of La. 700 ; 7 Harr. & Johns. 275 ; 5 lb. 478; 2 Har. & Gill, 374; 1 Binn. 224; Coxe, N. J. Rep. 214; 3 Kinne’s L. Comp. 104. I understand that this court has also decided the same at the November term, 1846, but have not been able to meet with the case. The authority of the plaintiff’s attorneys continues until the judgment is satisfied. 1 Greenl. Maine R. 257; Hill, N. Y. Rep. 552; 16 Mass. 395, 373; 7 Pick. 193.
    5. It is clear, from the evidence, that the plaintiffs knew that the payment was made in úncurrent money; and whether they are concluded or not by the judgment against the sheriff, after the lapse of five years, their acquiescence will be presumed. 2 How. U. S. Rep. 258; and also the case of Prewett v. Standifer, (8 S. & M. 493,) decided at the January term, 1847, of this court, as well as several other cases in which this court has settled the same principle.
    6. The admissions of Ross, one of the defendants, constitute all the evidence that the payment was made in uncurrent money. These admissions are no evidence against Stovall, the surety. 8 Ala. Rep. 353; 2 Wash. C. C. Rep. 473. So if the return can be set aside at all as to Ross and Davis, it cannot as to,Stovall; and if the plaintiffs cannot have execution against all, they cannot against any, as the execution must pursue the judgment. 2. J. J. Marsh. 137; 2 Har. Dig. 1121; see 5 U. S. Dig. 315.
    7. Baldwin’s evidence was inadmissible, because if he had no authority to take the judgment against the sheriff and his sureties, he is liable to the plaintiffs, and is therefore interested. 1 Greenl. Ev. 438, 439, 440, 441. Rejecting his depositions, and the objectionable part of Bliss’s deposition, and there is no evidence of a want of authority to procure the judgment against the sheriff and his sureties, and in the absence of such proof, the authority is presumed. 1 U. S. Dig. 328, sec. 68, 72.
    8. This motion is addressed to the discretion of the court, and ought not to be granted under the circumstances of this case. The attorneys of the plaintiffs knew for four years that the payment was made in uncurrent money, and took no steps to set aside the return until the sheriff had left the county, and the defendants were disabled from proceeding against him. A judgment is taken against the sheriff and his sureties, which yet stands in full force against them. Both attorneys now come forward after the lapse of five years, and say that they had no authority for so doing, whilst the plaintiffs are still employing the same attorneys, who acted without authority to their prejudice, to procure a new execution against the defendants. If the relief were granted, the consequence would be, that the plaintiffs would have a judgment in full force against the defendants, and one against the sheriff and his sureties for the same identical cause of action.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The plaintiffs had recovered a judgment against Davis and Ross, on which execution issued, and Stovall joined them in a forthcoming bond, which was forfeited. Another execution issued, returnable to the April term, 1840, of the circuit court, on which the sheriff made a general return, “Satisfied in full,” dated 16th of March, 1840. At the April term, 1845, the plaintiffs made a motion to set aside this return, and for a new execution, on the ground that the sheriff had taken in payment depreciated bank notes.

It is now well settled, that the sheriff is hot authorized to take depreciated bank notes in payment of an execution, and that if he do so, the plaintiff will be entitled to a new execution. 5 How. 621; 7 Ib. 554; 2 S. & M. 514; 7 Ib. 467.

But the plaintiff may consent to the taking of such notes, either expressly or impliedly. And as this was no payment without such assent, it is of course incumbent on the party who sets it up, to show that the plaintiff has given directions to the sheriff to take payment in uncurrent notes, or that he afterwards ratified the act by his acquiescence.

There is no pretence in this case, that the sheriff had positive authority to take these notes, but the subsequent acts of the plaintiffs are relied on as proof of their acquiescence. Indeed, the sheriff had positive instructions from the plaintiff’s attorney not to take Union Bank notes in payment; besides, one of the defendants had offered notes of that description to one of the plaintiffs in payment of the execution, who refused to receive them, because they were depreciated. It would seem to require some act of acquiescence unequivocal in its character, to overcome these facts.

The circumstances on which the defendants rely are, first, a judgment recovered against the sheriff and his sureties, on a motion made on the return for a failure to pay over money collected, after notice that Union Bank notes had been received; and second, the lapse of time between the return and this motion.

At the October term, 1840, the plaintiffs, by an attorney of the court, moved for a judgment against the sheriff and his sureties in his official bond, for a judgment under the statute, for-a failure to pay over money collected under execution, on which judgment was rendered for the debt and damages. On this, execution issued, which was returned nulla bona. This judgment was recovered under the following circumstances : An attorney of the court being engaged in making motions in his own cases, and seeing this return, entered the motion without authority, but as an act of friendship to the attorney who had brought the suit; and this was done without any knowledge on his part, that depreciated notes had been received by the sheriff, as the return did not so state. The only notice that the plaintiffs ever had that such notes had been taken, was derived from one of the defendants in execution, who so stated to the plaintiffs’ attorney, at the return term of the execution, but before it was actually returned. The attorney then told the defendants that he would not recognize such payment, but would pursue the matter further. It is now insisted, that the plaintiffs cannot deny the authority of the attorney who made the motion ; and as the motion was made after notice of the character of the payment, it was an election by the plaintiffs to treat the payment in Union Bank notes, as a payment in money: and having elected to pursue their remedy against the sheriff, they are estopped, and cannot have a remedy against the defendants.

The doctrine of election does not fully reach the case. It applies when a party has several remedies to enforce the same right, but must abide by his election; or when he may have recourse against any one of several defendants, and having elected as to one, is thereby precluded as to the others. The judgment in such cases constitutes a bar. Now if the execution was actually satisfied, as the return purported, the plaintiffs had no remedy against the defendants in execution; their recourse was against the sheriff. If, on the other hand, the return was false, they had a remedy against the sheriff, and also against the defendants, both of which they could have pursued at the same time. But it is a question of consent, and the judgment on the motion is a circumstance which may be used to prove the willingness of the plaintiffs to receive the Union Bank notes; or, in other words, to prove that they had, by their assent, ratified the act of the sheriff, and that their claim was consequently satisfied.

The effect of an appearance by an attorney without authority, was considered and settled by this court in the case of Miller v. Ewing, 8 S. & M. 421, On the authority of that case, the recovery of the judgment on the motion was the act of the plaintiffs. What then is its legal effect'! A judgment is not conclu-clusive of any matter which is only to be inferred from it by argument; but as the medium through which the intention of the parties is to be arrived at, this judgment seems to be sufficient, with the lapse of time, to overbalance the evidence which" tends to show a contrary intention. The plaintiffs had a right to receive or reject the depreciated notes. When their attorney was first informed that such notes had been collected, he disaf-firmed the act. This was before the execution was returned, and this notice to him must be regarded as notice to his clients. They had still a right to change their determination, and to receive the Union Bank notes; and this judgment recovered, after they had been informed of the character of the payment, can be regarded in no other light than as evidence that they had changed their mind, and had determined to receive the notes in satisfaction. They sued out execution, and remained passive for nearly five years. The case seems to fall within the principle settled in Prewett v. Standifer, 8 S. & M. 493. In that case we held that acquiescence would be presumed from mere delay, after notice of the character of the satisfaction, and we also said that such presumption would be repelled by a disavowal of the act. See also Anketell v. Torrey, 7 S. & M. 467. In this case there was at first such a disavowal, and if the plaintiffs had rested there, it would probably have saved their right to resort to the defendants; but they did not. At the very next term after that disavowal had been made, they proceeded against the sheriff, and then they take no other steps for five years. Proper vigilance on their part, might have enabled the parties who had paid the notes to the sheriff to recover them back. Their negligence, however, has cut off this remedy, or if it should still exist, the bank notes are worthless. The case is similar to that of Buckhannan, Hagan & Co. v. Tinnin, 2 How. S. C. Rep. 258, where it was held, that lapse of time was sufficient ground for inferring the implied sanction of the plaintiff to the act of an officer who had collected uncurrent notes. It may be true in point of fact, that the plaintiffs never had notice of the manner of satisfaction, or the proceeding against the sheriff. On well settled principles, however, we are bound to hold otherwise, and to regard every act as theirs. We, therefore, merely give the conclusions which necessarily follow an application of these principles to the facts. The result is, that the plaintiffs must be regarded as having sanctioned the act of the sheriff, and cannot now resort to the defendants.

Judgment affirmed.  