
    Elhanan W. Morris vs. William A. Lake.
    A person not a party to an execution may advance money upon it, and by agreement have it assigned to himself, and thus keep it in force ; but if he pay the execution, in whole or in part, without an agreement that it is not to operate as a discharge, or without taking an assignment, the execution will be pro tanto satisfied and cannot be afterwards enforced.
    Nor is this rule of law rendered different with respect to sheriffs by operation of the statute (How. & Hutch. 298, § 28,) which vests in the sheriff the execution, the amount of which he has been compelled to pay on a failure to make a due return of it; that statute will not be extended beyond its close construction.
    Where, therefore, a sheriff having an execution in his hands against a principal and surety, pays to the attorney for the plaintiff therein a portion of such execution, expecting to reimburse himself out of a fund in his possession; and subsequently when that fund fails, takes an assignment of so much of the execution from the attorney, the sheriff cannot enforce the execution for su’ch sum so paid; but the execution will be pro tanto satisfied.
    In error from the circuit court of Warren county; Hon. George Coalter, judge.
    William A. Lake filed his petition in the circuit court of Warren county, to its May term, 1844, alleging that William H. Hamer, administrator of William Estes, recovered a judgment against Robert D. Muir and himself for the sum of f 1744.83, on which several payments had been made reducing the balance due to ¡$332.37^, for which another execution was then in the sheriff’s hands, levied on petitioner’s property; that this balance due had been either voluntarily or at the instance of Robert D. Muir, paid by Elhanan W. Morris, then sheriff of the county, without any agreement that the execution should be assigned tó him, or any assignment of it; that subsequent to this, Morris had procured an assignment of the balance due on the judgment, which he had thus paid and was enforcing payment of it by execution. A supersedeas was prayed for and granted.
    At the November term, 1844, the petition was tried and as exhibited by the bill of exceptions, the following facts in substance ' proved. The attorney of record in the original judgment for Hamer, testified that in the year 1840, he brought' the suit against Muir and Lake; Morris being then sheriff of the county. That an execution issued on the judgment obtained against Muir and Lake to the November term, 1840 ; on which the sheriff, at different times, paid him considerable sums of money up to the 30th of April, 1841, which were credited on the execution ; that on the 12th of June, 1841, Morris paid him the further sum of $300, for which he executed to Morris a receipt in these words, viz. Received of E. W. Morris, three hundred dollars, in part payment of the execution in the case of William H. Hamer and Robert D. Muir et al. to the April term 1841, of the Warren circuit court; June 12th, 1841.”
    The attorney of. record further stated, that he was in the habit of receiving money from the sheriff at different times' as he needed it, to settle with clients, or for other purposes; a running account existed between him and the sheriff, which was settled at each court; when he would obtain money from the sheriff he would receipt for so much “ received of E. W. Morris on executions” to such and such a term of the court, without specifying any particular execution, and these receipts would be taken up at each semiannual settlement; that on the same day of the date of the receipt for the three hundred dollars, the 12th of June, 1841, the full and final settlement took place between himself and the sheriff for the previous six months; after the settlement the witness informed the sheriff he stood in need of three hundred dollars more, and asked and obtained it of the sheriff, to be credited on the Hamer execution; Hamer being indebted to the witness in a greater sum; the sheriff let him have the money, and he gave the receipt referred to. That the sheriff informed him that Muir had deposited certain goods with auctioneers in Vicksburg, for sale, to- pay the execution, out of which he expected to procure funds to pay it. The witness further stated, that he was not in the habit of giving receipts for money received, specifying in them the particular executions on which the sums received were paid, and he was at first surprised to see this receipt specify the particular execution on which the f>300 was paid; that the reason of this was, that this execution" (which had been held up by the sheriff beyond its return term, in the expectation of its being paid by the sale of the goods,) was the only one remaining in the sheriff’s hands unsettled, between the sheriff and himself; that in the fall of that year, when Morris was no longer sheriff, he or his deputy, Randolph informed the witness that the auctioneers referred to had not paid the balance due on the execution, and that Morris had been unable to collect the sum advanced to witness, and requested him to give Morris the benefit of so much of the execution, and of the further sum of j$32.37¿ overpaid on the execution by Morris to witness; that witness accordingly after the 26th of November, A. D. 1841, made this indorsement on the same execution, viz. “Three hundred and thirty-two dollars and thirty-seven and a half cents of this judgment is for the benefit of E. W. Morris, with interest from June 12, 1841.” That Lake knew nothing of the payment, nor was it made by his authority or consent. That this sum of three hundred dollars paid June 12, 1841, was paid out of the private funds of Morris; that when so indorsed the execution for the benefit of Morris, Randolph, his deputy, returned to witness his receipt above referred to; and when called upon to testify in the case, he had looked for the receipt to refresh his memory. He had no other authority than that which he possessed as attorney at law to make the assignment.
    
      The plaintiff in the cause below here rested his cause, on which the defendant introduced R. R. Randolph, his deputy, in the office of sheriff, who proved the circumstances with reference to the payment of the three hundred dollars, that it was made without the knowledge of Muir or Lake, out of the private funds of Morris, for the sole accommodation of the attorney of record for Hamer, and Morris had received no portion of this three hundred dollars from any quarter.
    The defendant, Morris, then read a deed of trust from Muir to secure Lake against liability on this execution and other securities for him, upon which Lake introduced Muir as a witness, who testified that no portion of the property embraced in the deed of trust had ever gone into Lake’s possession ; that it had been all exhausted in the payment of prior liens, on which Lake was liable for him, and that Lake was already in advance of money to him, for payments made as his surety.
    On this proof the court below directed the judgment to be entered satisfied, and the sxipersedeas made perpetual. Morris prosecuted this writ of error.
    
      D. Mayes, for plaintiff in error,
    contended,
    1. That entry of satisfaction was erroneous, because it was made for the whole sum of $332.37; when it was charged that only $300 had been paid.
    2. That under the facts no part of the judgment should have been entered satisfied. He cited Reed v. Prynn, 7 Johns. R. 426; Sherman v. Boyce, 15 Johns. R. 443; State Treasurer v. Holmes, 4 Term. R. 115 ; Bruce v. Dyall, 5 Monr. 125; 1 Litt. R, 137; Allen v. Holden, 9 Mass. R. 133; Brown v. The Maine Bank, 11 Mass. R. 153; 15 Mass. R. 181; 1 Term R. 619.
    3. That if the rule of law were different, the statute of this state, (How. & Hutch. 298,) which provided that when a sheriff failed to return an execution on the return day, he should on motion pay the plaintiff the debt, and have the judgment assigned to him, altered the rule in this state as to sheriffs. He cited the case of Pickens v. Gwynn, MS., decided by Chancellor Buckner.
    
      
      George S. Yerger, for defendant in error.
    There can be no doubt that the payment to the attorney was a satisfaction of the judgment; no agreement to assign was made at the time; the sheriff looked for his indemnity and return of the money to him to a different source. 3 Paige, 117 ; Sherman v. Boyce, 15 Johns. R. 117, and cases cited in notes.
   Mr. Justice Clayton

delivered the opinion of the court.

There was a judgment in the circuit court of Warren county, in favor of W. H. Hamer against R. D. Muir and W. A. Lake, as his surety. On the 12th June, 1841, the sheriff paid to the attorney, for the plaintiff, three hundred dollars, and took his receipt for that amount, "as in part payment of the execution.”' Afterwards another execution issued, under which the sheriff was about to seize the property of Lake the surety, when the latter obtained a supersedeas to stay proceedings. At the ensuing term of the court, the execution was quashed, and satisfaction directed to be entered by the court, for the reason that the payment by the sheriff was a discharge thereof.

A person, not a party to an execution, may advance money upon it, and by agreement have it assigned to himself, and thus keep it in force. But if such person pay an execution, in whole or in part, without an agreement that it is not to operate as a discharge, or without taking an assignment, the execution will be pro tanto satisfied, and cannot be afterwards enforced. To this effect are the cases of Reed v. Pruyn et al. 7 Johns. 426, and Sherman v. Boyce, 15 Johns. 443, and Harwell v. Worsham, 2 Hum. 525. The cases cited in argument of Stinson v. Sumner, 9 Mass. 137; Brown v. Maine Bank, 11 Mass. 153, and Dunn v. Snell et al. 15 Mass. 481, all relate to assignments, and do not stand opposed to the principle above stated. The case of The State Treasurer v. Holmes, 4 Verm. R. 110, turned upon the ancient practice and usage in that state, and cannot be an authority out of it.

But it is insisted in argument, that the statute in How. & Hutch, p. 298, sec. 28, varies this rule.

That statute directs, that upon the failure of a sheriff to return an execution, according to law, the plaintiff may by motion recover against him, the amount of such execution, with interest and damages, and that after the sheriff shall have paid the amount so recovered, the original execution shall be vested in him for his benefit.

The argument is, that as this statute gives the benefit of the execution to the officer, after judgment against him, and after his payment of that judgment, he should likewise have the same benefit of the execution, if he make payment without the judgment. To this it may be replied, that in the case provided for by the statute, the original execution is not paid by the sheriff at all, it is the judgment against him which is paid, and the payment of which operates, under the statute, an assignment of the original execution to him. This is a very distinct matter from the payment of the first execution. We are not inclined to extend the statute beyond its close construction. To do so would tend to encourage negligence in the performance of official duty, by an assurance that after his laches and delay, the sheriff might pay and then enforce the execution. In this way, the officer would avoid the damages imposed by the statute for his neglect, and which the statute does not authorize him to recover.

The facts show, that the plaintiff’s attorney required the money as a payment, and gave a receipt for it as such; but several months afterwards, when the sheriff found that he could not get the money from the source from which he expected to obtain it, he procured an assignment of the execution from the same attorney. This was clearly an afterthought, and could not revive a liability previously discharged. It is a question of intention and agreement between the parties. Once a payment always a payment.

The cases in Kentucky decide, that after a judgment against the sheriff, for his failure to return an execution, the beneficial interest in the execution is vested in him. Bruce v. Dyall, 5 Monr. 128; 1 Litt. R. 137. This is nearly the same with our statute, and does not conflict with what is said above.

The three hundred dollars paid by the sheriff, was not the full amount due on the execution at the time; nor does it appear that the balance has yet been paid. The circuit court, therefore, erred in quashing the whole execution. For this reason the judgment will be reversed, and this court proceeding to give the judgment which the court below should have given, directs that the supersedeas be retained as to the three hundred dollars paid on the 12th of June, 1841, but discharged as to the residue.

Judgment reversed.  