
    The Bank of Gallipolis, for the use of Henry Valette v. William Domigan, Sheriff of Franklin County.
    The provisions of the act of March, 1842, to regulate judicial proceedings where hanks and hankers are parties, requiring the sheriff to receive hank notes in satisfaction of execution in favor of a bank, etc., are constitutional. A sheriff’s return, which shows, on its face, a compliance with the provisions of that act, is conclusive, on motion to amerce.
    The plaintiff in execution can not go behind it, but must resort to his remedy for a false return.
    This is a writ of Error to the court of Common Pleas of Franklin county, to reverse a judgment in favor of the defendant, on a motion to amerce him.
    The facts set forth in the bill of exceptions are, substantially, as follows:
    On the 19th of January, 1841, Justin Morrison, Joel Buttles, and Demás Adams, gave their note to the Gallipolis Bank, for $4000, at four months, not negotiable. Five days aferwards, just as that bank was going down, the note was assigned by the bank to Valette. Yalette put the note in the hands of G. Swan for collection. Swan, before he sued the note, notified the makers of the assignment to Yalette, and the makers then told him they were ready to pay it in Gallipolis money. Swan called on them to produce such money, but they did not do it. Swan then brought suit, June 26, 1841, in the Common Pleas, alleging, in the declaration, that the suit was for the use of 221] *Yalette. The general issue, and notice of setoff, were put in, and a judgment passed for the plaintiff, at the February term, 1842. The defendants appealed to the Supreme Court, and, at the December term of that court, a judgment was rendered for the plaintiffs, for $3,942.25 damages, and $197.11 penalty ; about $700 being allowed in offset, that sum being shown to be in the hands of the makers, in Gallipolis bills, when they had notice of the assignment to Yalette. A mandate went down to the Common Pleas, and a fi. fa. et lev. fa. issued, bearing date, March 17, 1843. On the 9th of May, the sheriff returned this execution, indorsed as follows :
    “ March 27,1843, received this writ, and executed the same, by receiving of the defendants the sum of $4,250, in the bank notes of the President, directors, and Company of the Bank of Gallipolis; the said Henry Valette, for whose use the plaintiffs sued, not being an assignee, bona fide, of the promissory note or liability upon which this judgment was rendered, in the settlement of any claim or claims of his against said bank, I have made the further sum of $73.59, being the amount of all the costs.”
    At the May term, 1843, the return term of the execution, a motion was made to amerce the sheriff for not executing this writ of execution. On the hearing of this motion, certain other facts were proved, in substance as follows :
    That no notice had been given to Valette, at any time, that the assignment to him by the bank was to be called in question.
    That the sheriff had admitted, to G-. Swan, that no evidence had been given to him, to show that said assignment was fraudulent.
    That the defendants had indemnified the sheriff for making such a return, and receiving Gallipolis money, by a judgment confessed for $5,000 at that term.
    That said Morrison had one or more conversations with one or more of the Bank Commissioners, about their instituting proceedings, with the intent, on the part of Morrison, to pay the debt in Gallipolis bills, if said assignment should prove fraudulent. These conversations were had pending the suit *on the note ; Morrison’s counsel inform- [222 ing him that, in order to make his defence, it might be necessary for the bank commissioners to act.
    That the Gallipolis bills were good for nothing, and formed no part of the currency at the time the sheriff received them.
    That G. Swan understood Valette had received said note on the settlement of his accounts with the bank.
    That the sheriff informed the witness that the defendants, or one of them, told him, the sheriff, that the Gallipolis money taken by the sheriff was, in whole or in part, the identical money that said defendants h^d got out of said bank originally, and gave that as a reason why the sheriff ought to receive the same on the execution.
    •The sheriff, on his part, showed, in substance,—
    That the counsel for the defendants, Morrison, et al., told him, the sheriff, they had suspicions, and that said defendants claimed the assignment was fraudulent, and in violation of the bank commissioner law, and gave him the grounds of such statements, (but which grounds were not shown to the court.)
    That the sheriff, about a month before the execution of said writ, told G. Swan, Valette’s attorney, that he was going to take Gallipolis bills on said execution; to which said Swan replied, that he, the sheriff, had best look to see himself well indemnified, or words to that effect, and said nothing further.
    That the Gallipolis Bank failed about the time of the date of said assignment.
    No evidence was given that Coombs was the cashier, or had authority to make the assignment, or that the assignment was in his handwriting.
    On this state of the case, the motion to amerce was overruled.
    P. B. Wilcox, for plaintiff in error.
    The provision of the statute on which this motion is founded is for “ refusing and neglecting” to execute the writ. Swan’s Stat. 483.
    *The statutes under which the sheriff is sought to be justified, are the act of January 28, 1824, “to regulate judicial proceedings where banks and bankers are parties,” Swan’s Stat. 147 ; and an act to amend that act, passed March 5, 1842, Ohio Stat. vol. 40, p. 33, last clause section four.
    The first act provides, “ that in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees, or under them, in any way, for their benefit, the sheriff, upon any execution in his hands in favor of such bank or banker, their or his assignee, as aforesaid, shall receive the note or notes of such bank or banker, from tho defendant, in discharge of the judgment.”
    This part of the statute came before this court in 1824, 1 Ohio, 376, and it was held not to apply to cases where the bank had, bona fide, parted with all its interest to an assignee.
    Then came the amendatory act, of March 5, 1842, Ohio Laws, vol. 40, p. 33. This act requires the sheriff, in all cases of assignment, whether bona fide or not, to take the bills of the bank, except “ any assignee or assignees, who have heretofore become such, bona fide, in the settlement of his or her claim or claims against such bank or banker.”
    This act was passed in March, 1842, and after the judgment in this case had been rendered in the Common P¿eas ; and it might be made a pretty serious question, how far the act of 1842 could affect judgments already rendered, on debts before that time assigned, bona fide, and for a valuable consideration. It looks very much like a contract, such as the Constitution will not allow to be impaired. This question, however, does not seem, necessarily, to arise in this case, for the evidence seems to make out, at least, a prima facie case under the exeeption in the act of 1842, and there being no proof of fraud, the law will not presume it.
    From the 9th section of the act of 1824, this proposition seems to be fairly deducible — that, in all cases whatsoever, whoever may be 'the parties to the record, the sheriff has power to take Gallipolis bills, or the bills of any other broken bank. *The question is, whether [224 a bank, in any way, has an interest in the suit, no matter in whose name it is brought; otherwise, the act might be evaded, by bringing the suit in the name of an individual. The object of the statute was to compel a bank to take its own notes. Whatever shape, then, the suit might assume on the record, and whoever might be the parties to it, yet if, in fact, the suit was for the benefit of a bank, then the sheriff has the power to take the bills of the bank. The sheriff, then, in all cases whatsoever, has the power to take such bills. Suppose, on the two hundred executions in the sheriff’s hands, at May term, 1843, he had received, on them all, Gallipolis bills, and had made the same return as in this case ; he certainly had the power to do so ; and it was his duty to do so, if. all the executions were for the benefit of the Gallipolis bank- The idea is this : the sheriff has absolute power over all executions that come to his hands, and he may, if he will, take Gallipolis bills on them all. The law gives him this power, but holds him liable for the abuse of it.
    The question then is, has the sheriff, in this particular case, so abused this power as to be liable on amercement. We think he has, and for these reasons :
    First: The record shows the suit was brought for the use of Henry Valette. In such case, the officer is justified in paying the money to the assignee. It is, prima facie, a valid assignment. Scott v. Westlake, 2 Ohio, 24.
    Second; The sheriff never notified Valette, at all, that the assignment was to be called in question, If he had done so, Valette might, at once, have removed all doubt. Is not this fatal ? Why did the sheriff keep this a secret from Valette and his counsel? Valette, doubtless, would have at once indemnified the sheriff, had he known that the assignment to him was doubted. Does not this show that the sheriff was merely an instrument in the defendant’s hands ? especially when taken in connection with the other conduct of the defendants, showing a determination to avoid this debt. It is true, the sheriff told Valette’s attorney that he was going to take Gallipolis bills, but gave no reasons for it; nor did he ^pretend that the assignment [225 was fraudulent. The reply which Valette’s attorney gave to the sheriff, “ That he must look well to his indemnity,” shows that he thought it was an affair got up to delay and shuffle off the debt, especially as they did not produce Gallipolis. money at first, when he notified them of the claim in his hands; and then did not pretend to have but $700 on hand, and which was allowed in setoff, when final judgment was taken. What else could he think, but that it was a matter trumped up for delay, or to avoid the debt altogether ?
    Third : Because the sheriff admitted to G. Swan that no evidence had been given to him, to show the asignment fraudulent.
    Why, then, did the sheriff take Gallipolis money ? The command of the writ is, that he make good and lawful money, and have it before the court, as he shall answer at his peril. The statute then comes in, in this particular case, and allows him to take Gallipolis bills, where there has been a fraudulent assignment. Now, what is there left for the sheriff to say, after he has once confessed that, in this case, he had no evidence of any fraud in the assignment ? It is true, the counsel for the defendants told the sheriff they had suspicions, and the defendants claimed the assignment to be fraudulent, but yet gave no evidence, at all, to the sheriff, nor did they condescend even to notify Valette, or his counsel, of those suspicions as to the assignment. Now. will it do, under such circumstances, to let a sheriff take worthless bank bills in discharge of a just debt? Is it not trifling with the process of the law ? Sound policy requires a sheriff to be held to a a strict observance of his duty. At all events, he must not act with bad faith, nor show ease and favor to those against whom he has process. In Wadsworth v. Parsons, 6 Ohio, 449, this court amerced the sheriff for not selling goods,' when the law allowed him to take bond for their re delivery. This case went on the ground, that the sheriff acted at his peril. There is this difference in the two cases — the act of 1824 requires .the sheriff to take bank notes where the suit is for the benefit of a bank ; and if a sheriff acts in good faith, on reason-220] able grounds, giving due notice *to the opposite party, and especially if he refuses to indemnify the sheriff, the court would not be apt to amerce. But in this case, the conduct of the parties, all along from the beginning, shows they intended to get rid of the debt if they could. They gave a note to the Gallipolis Bank, not negotiable, just as the bank was going down, as if they intended the note should not be assigned, or, if assigned, that they might pay it in Gallipolis bills. They told Mr. Swan they were ready to pay the note in Gallipolis bills, but did not produce them, though requested to do so. They suffered themselves to he sued, and, by appeal,'took the longest delay possible. They talked with the bank commissioners, to get them to act, hoping, in that way, to pay the debt in Gallipolis bills. On the trial, in the Supreme Court, they did not pretend to have but $700 of Gallipolis bills, and they were allowed in setoff. When execution came out, they gave no notice to Valette, or his attorney, that they claimed the assignment to he fraudulent ;Tnor did they produce any evidence to the sheriff of any fraud. From the commencement of the suit, to the end thereof, they did not give any intimation that they intended to call tho assignment in question ; and, finally, when it came to the last, and the money had to be raised, they induced the sheriff to take a judgment against them for $5,000, and then take Gallipolis bills in satisfaction of the judgment, Now, there is not, perhaps, evidence enough to show an actual fraudulent comhination between the sheriff and these defendants, hut we think there is enough to show that the sheriff has been tampered with, and led and induced to act against his plain duty, without any good reason, and without any good excuse; and that, therefore, he must abide the consequences.
    Another fact ought to be borne in mind. It is, that, on the hearing of this motion in the court below, they did not offer any evidence, at all, to show the assignment fraudulent. No proof was given to th'e sheriff that it was fraudulent, and the sheriff gave none when he was called to account for his doings.
    The court below, in overruling this motion, were understood to rely chiefly on some case, not reported, that went up to the Supreme Court in this county, where the sheriff levied on Elands, where there [227 were goods, and he knew it. The court refused to amerce, it was said, because the writ was, in fact, executed. What the facts of the case were I do not know, but there seems to be a very clear difference in the cases. Here the Gallipolis bills were of no value at all. The sheriff might just as well have returned, that he had levied on an oak rail, or a bundle of straw.
    If this doctrine be correct, the sheriff may levy any execution on any trifling thing, of the least possible value, and so save himself from an amercement. Such a practice, too, would suit debtors who want delay without running any risks.
    This court, therefore, are desired to reverse the opinion of tho court below, and then make the order which tho court below should have done; for, if it be sent back to..the Common Pleas, the action against the sheriff will be barred, before another order of the Common Pleas can be got before this court. The action against the sheriff has to be brought in one year.
    Swayne and Bates, and J. W. Andrews, for defendant.
    We make the following points .
    First: The sheriff has executed the writ. The return, if true, is sufficient, and conclusive; and, if not, the court can not amerce him for a false return.
    Second : Whether the return be true or not, the sheriff was bound to take Q-allipolis money, so far as respects the bank, and the court can not amerce the sheriff for a violation of the equitable rights of Valette; and he has no other rights in the case.
    Third : If the court can amerce in a case of this kind, they ought not to amerce under the circumstances of this ease.
    These points will be considered in the order in which they have been stated.
    1. The sheriff has executed the writ. The return, if true, is sufficient, and conclusive; and, if not true, the court will not amerce him for a false return.
    It will have been observed that the sheriff was compelled to decide the question, whether the assignment to Valette was valid or not, 228] The statutes threw upon him this duty. He *could not escape it. If he decided in favor of Morrison, he was liable to proceedings against him by Valette. If in favor of Valette, then he was liable to Morrison. Being thus compelled to decide this question, he was placed, by the law, between two fires. The return negatives the words of the statute. If true, it was the duty of the sheriff to make it, and it is sufficient and conclusive. In that event, the sheriff could not, properly, make any other return. The case is not, at all, then, like a levy “ upon an oak rail; ” or, upon an abstraction, which has nothing to do with the case.
    The sheriff’s return is to be taken as true, until the contrary is shown. It forms a part of the record. Watson v. Watson, 6 Conn. 334, and the cases there cited.
    In Duncan v. Drakely, 10 Ohio, 47, the court say, “ in proceedings under the statute authorizing the amercement of an officer, great strictness is required, and he who would avail himself of the remedy therein provided must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is summary, and highly penal. There is no trial by jury, and but little, if any, discretion is left to the court.”
    In Bushnell v. Eaton, Wright, 720, Judge Wood observes, “ No amercement is provided for the oppressive acts of the sheriff, other than those enumerated ; for all others, the party injured is left to his remedy by action. Amercement is a penal proceeding, varying from the course of the common law, and only to be pursued when authorized by law. The order amercing the sheriff is reversed.”
    In Wadsworth v. Parsons, 6 Ohio, 449, referred to upon the other side, the sheriff was amerced for'not selling goods upon which he had levied. The facts all appeared in his return. The court held that they did not afford him a sufficient excuse. The ease was within the very letter of the statute, and, even in that case, it will be observed, that a very cogent dissenting opinion, was delivered by one of the judges.
    The return being sufficient, if the court amerce it must be for a false return.
    *2. Whether the return be true or not, the sheriff was bound [229 to take Gallipolis money, so far as respects the bank, and the court can not amerce for a violation of the'equitable rights of Valette ; and he has no other rights in this case.
    The bank is the legal plaintiff, and is the only party plaintiff to the record. If Valette were not named upon the record, nor known in the case, there could not be a doubt of the receivability of the paper of the bank, in payment of the judgment. The sheriff would unquestionably be bound by the statute to receive it.
    If, then, the sheriff be amerced, it must be for violating, not the rights of the bank, but those of Valette.
    Admitting that an assignment was made to Valette, which was not proved, and that it was made bona fide, as is claimed upon the other side, what are Valette’s rights?
    “ The note is not negotiable. The consequence is, that an assignment does not transfer the legal title, but only an equitable interest in it. This is obvious, from the fact that the assignee, if he sue at law, is compelled to make use of the name of the assignor. Notwithstanding the assignment, the legal interest remains in the assignor ; and ho alone, who has a legal interest in the subject matter, can maintain a suit. The action, although it is brought for the benefit of the assignee, must still be brought-in the name of the assignor. And as he alone, who has the legal interest in the subject matter, can maintain a suit, the action, although it is brought for the benefit of the assignee, must still be brought in the name of the assignor. It is not even necessary to notice the name of the assignee on the record, as that it is for his use.” Townsend v. Carpenter, 11 Ohio, 21.
    The case of Scott v. Westlake, 2 Ohio, 24, cited on the other side, only decides that the statement on the record, that the suit is brought for the benefit of another person, “ has been considered a sufficient authority, from the nominal plaintiff, to justify the officer in paying the proceeds of the judgment to the person designated, where no objection is made. It has been treated as an acknowledgement, by the 230] plaintiff, that he *was a trustee, suing for the use of another; and it appears unnecessary to inquire in what way the trust was created, as long as the trustee is disposed to acknowledge it, and the interest of third persons is not affected by it.”
    It may be safely laid down, as a proposition without exception, that there can be no recovery in such a case, without an inherent right of action in the plaintiff on the record; much less can there be an amercement where this fact does not exist.
    It is not pretended, here, that the plaintiffs, as separated entirely from Valette, have, or, by possibility, could have, any right of action against the sheriff; but it is claimed that they have it by reflection from, or relation to, Valette, and it is claimed, also, that this Iron statute shall be enforced against the sheriff, not for violating any rights of the plaintiff, nor the legal rights of any body, but for disregarding the possible equitable rights of Henry Valette. Such a proposition has, at least, the merit of novelty. We admit that there are certain rights in such cases, on the part of the cestuis que trust, which a court of law will recognize ; but this does not at all conflict with the view upon which we insist.
    Third : If the court can amerce in a ease of this kind, they ought not to amerce under the circumstances of this case.
    In considering this point, it is necessary to advert, briefly,, to the testimony, as well as to the general aspect of the case.
    The counsel then proceeded to comment upon the evidence set forth in the bill of exceptions. But as it was not regarded by the court as material, in the determination of the case, that portion of the argument is omitted.
    G. Swan, for plaintiff, in reply.
    It is most undoubtedly true, that a sheriff, in this and every other ease, has the power to take whatever he pleases in discharge of an ex-edition — old almanacs, or Gallipolis . paper, for example — and can make return of the facts ; we, however, can not concede to the other side, as counsel suppose we must, that no amercement in such case will be ordered, but the *injured plaintiff must seek redress by action. [231 It is a fact of notoriety, and proved on the case, that, at the time the sheriff received the notes of the (Gallipolis Bank, they were, and now are, of no value; The exigency of the execution was to make the money ; the return is, that he has made nothing, or, that which has no value. It is the same as if he had returned that he had taken so many pieces of blank paper in discharge of the execution. Counsel on the other side do not deny that this return would, as between individuals, have been as no return, and would have subjected the officer to the same consequences as if none had been made.
    If a sheriff returns “ money made,” when he has made none, it is a mere false return,for which an action can be sustained ; but an amercement, it has been held, will not lie. This was carrying the principle as far as it ought to be extended, for the protection of officers from the just penalty of neglect. But when the officer, upon the face of his proceedings, discloses that the return is true, perfectly so, but that he has wholly disobeyed the command of the process, and neglected to make the amount, then, according to every decision, the injured party has his choice of remedies. This is precisely the case before the court, if the parties are Valette v. Morrison et al., in the judgment and execution.
    It is true, the nominal plaintiff was the Gallipolis Bank, but the record shows who was the cestui que trust. The action was prosecuted for the use of Henry Valette, who was the apparent assignee upon the back of the note. It is insisted, by counsel on the other side, that there is no evidence that the note was assigned to Valette. So far as it respects the right of Valette, whether the assignment appeared or not, was wholly immaterial, upon settled authority. In the case of Scott v. Westlake, 2 Ohio, 24, the court says ; “ That the want of an assignment, or an order, on the back of the note, does not disprove the right, It might have been created by a separate instrument, or a parol agreement, the validity of which could only be questioned by the payee,” etc. Courts of law take notice of assignments of choses in action, and will not only *protect the rights of the assignee [232 against persons having actual notice, but, also, when the party has a knowledge of such circumstances as ought to put him upon inquiry, Anderson v. Van Alen, 12 Johns. 343; Johnson v. Bloodgood, 1 Johns, Cases, 51.
    
      It was not the business of the sheriff whether this money would belong to Yalette, or some other person: he was only bound to make it, and leave that question to the determination of the court. Rogers v. Burk, 10 Johns. 400. The record, in fact, forbade him from determining that the money was for the benefit of the nominal plaintiff. The facts show that he well knew this to be the case.
    It is fraudulent to pay to the nominal plaintiff, and must be equally so to receive for his benefit, by the sheriff, after notice. Andrews v. Beech, 1 Johns. Cases, 411 ; 19 Johns. 95; Raymond v. Squiers, 11 Johns. 47. So, when the assignor enters satisfaction, it will beset aside. Wardel v. Eden, 1 Johns. 531.
    So the assignment is held as an authority to sue. Wright, 737 ; Ibid. 501.
    A mere delivery of a chose in action is a good assignment. 15 Mass. 481 ; Pancost v. Ruffen, 1 Ohio, 384. Authorities could be multiplied upon this point. A sufficient number has been cited to show that the want of proof of the assignment could not protect the sheriff. In fact, he has nothing further to do than look to the record. The assignor’s interest had passed, and courts of law afford assignees of choses every protection. They will not permit the assignor to interfere with the suit. 1 Wheat. 233 ; 5 Wheat. 277. It may be said by the opposite counsel, that the sheriff was compelled to decide between the parties ; but what parties ? He certainly could not go out of the record to decide, without violating his duty. He had a writ of execution, whose commands were unambiguous, and upon its face it disclosed for whose use the action was brought, and who was entitled to the money. His duty was perfectly plain. If he was allured from its performance, it was his own voluntary act, upon the management 233] of *those deeply interested, in tampering with him for gambling and fraudulent purposes ; interested in defeating the rights of the party to the record, and discharging a debt with worthless trash. If the sheriff had pursued his ordinary course, there would have been no> possibility of injury to him. We deny that the duty of deciding upon-the validity Of the assignment rested with the sheriff. The prima facie owner of the judgment was Yalette, an’d that was enough to protect him in collecting the amount, and presenting the return to the court. If the validity of the assignment was to be contested by the nominal plaintiff, or any one claiming an interest, it was on motion to receive the money, or by bill in chancery, in case there were different conflicting claimants.
    
      Again : It is suggested that the assignee has no'right to use the name of the bank for the purpose of amercement. The authorities are the other way. When an escape has been suffered, the assignee of a chose in action may maintain a suit against the sheriff, in the name of the assignor, which the sheriff can not defeat by taking a release from the nominal plaintiff. Master v. Hawkes, 15 Johns. 405.
    It does not follow, however, if the sheriff is “ between two fires,” that he shall be protected if he 'seeks the wrong side. If he decides the question of right, obviously wrong, he deserves punishment; or, if he decides not only wrong, but from favoritism, or by skulking behind his enemy, he can derive no advantage in law, or against a just claimant, who has committed no fault.
    As before remarked, the sheriff’s return may contain the truth, all the truth, and nothing but the truth, and still he may be guilty of gross and criminal neglect. He might return, upon a ca. sa., that he had killed the defendant, and that might be literally true ; he might return, upon a fi. fa., that he had levied upon a ballad, and sold it for beech leaves, and this might, also, be a true history of his official acts ; or, he might return, upon an execution, that he had received and accepted the notes of- any bank, however worthless, and this might not, in fact, be false, still, in all such cases, it would be altogether ^absurd to decide, judicially, that he had been guilty of no neg- [234 lect or violation of official duty. The opposing counsel do not, however, appear to have much confidence in this part of their case, nor evince much desire to press it upon the consideration of the court. We copy the sheriff’s return :
    “ March 27, 1843. Received this writ, and executed the same, by receiving of the defendants the sum of $4,250, in the bank notes of the President, Directors and Company of the Bank of Gallipolis ; the said Henry Valette, for whose use the plaintiffs sued, not being an assignee, bona fide, of the promissory note, or liability upon which this judgment was rendered, in the settlement of any claim or claims of his against said bank. I have made the further sum of $73.59, being the amount of all the costs. (Signed) Wm. Domigan, Sheriff, May 9, A. D., 1843.”
    The sheriff asks to be justified for this return, upon the grounds that he has disclosed, in his return, without showing in what manner he was led to such conclusion, not that he had made the mon ey, but that he had not.
    This part of the ease presents the question, whether, upon the record alone, for no extraneous facts are shown, the sheriff was justified in making such return ; in other words, whether the return discloses any “ neglect or refusal to execute the writ.” It is very true, that the sheriff can arbitrarily make just such a return as this to every execu tion in his hand, no matter who the parties in interest may be. As between persons in no manner connected with a fraudulent or insolvent bank, what would be the effect of such return ? The defendants say it would be conclusive upon a motion to amerce. If that is true, the statute for amercement is worse than a mockery ; it is an insult to the injured party, and an instrument of oppression in the hands of the officer. I was not present at the decision of the ease of Bostwick and Taylor v. Graham, Sheriff of Franklin county, and know not the ground of reasons for the decision. I know, however, that it was a case decided contrary to the opinion of the bar, and, if I am not greatly mis235] taken, the counsel who now urge it as law, agreed with ^myself that it was rather sticking in the bark, than penetrating deeper. It was generally remarked, after that decision, that it was out of the question to reach a sheriff, by amercement, while the Supreme Bench retained its then incumbents. At all events, this court have never been concluded by any verbal reports of their decisions on the circuit, and wc ask. a decision of this case upon its own merits.
    The second proposition of the defendants has already been answered, and the authorities referred to. They may be summed up, by saying, that an assignee of a chose in action may use the name of the assignor for every purpose of enforcing his right. 15 Johns. 405.
    With regard to the third point of defendant’s counsel, which resists the amercement under the circumstances, we have little to add. We may, however, be permitted to remark, that a more clear case of premeditated and deliberate intent to give currency to fraudulent bank notes, at par, and then, by contrivance and trick, discharge the debt in the hands of an innocent assignee, by worthless trash, which did not cost the debtor over one per centum, can not be found in the history of the past ten years, so full of fraud and dishonesty.
   Wood, Judge.

We entertain the opinion, that the great portion of the evidence which was given on the trial of this motion in the court of Common Pleas should be laid out of view. It appears to us immaterial, whether, in the language of counsel, the proof shows that the defendants have tampered with the sheriff, or, whether he has trifled with the process of the court, so far as the present ease is concerned.

The important inquiry is, what is the return of the sheriff on the fi.fa.? And does it show the due execution and faithful discharge of his official obligations, cast upon him by the reception of the execution ? If the return of the officer shows this, upon its face, the plaintiff could not go behind it, on a motion to amerce; but is left to his remedy by action for a false return. The reason is, this summary mode of redress is not given, by statute, for a false return.

*The statute is penal, must be construed strictly, and the sheriff [236 shown to be within both the letter and spirit. Bushnell v. Eaton, Wright.

Taking the facts, then, to be true, as set forth in the return, is the sheriff justifiable in receiving the amount of damages due the plaintiff in the paper of.the bank? Several statutes are cited by counsel, as bearing on this question. The ninth section of the act of 1824, “ to regulate proceedings where. banks and bankers are parties,” among other things, provides, that, in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees, etc., and for their benefit, the sheriff, upon any execution in his hands, in favor of such bank or banker, their or his assignees, etc., shall receive the note or notes of such bank or banker from the defendant, in discharge of the judgment, and that, if such notes are refused to be received from the sheriff, he shall not be liable to any proceedings whatever, at the suit, or 'upon the complaint, of such bank or banker, or his or their assignee. Swan’s Stat. 147.

The act of 1842, O. L. vol. 40, p. 33, declares the meaning and intention of the act of 1824, sec. 9, was, and is, that payment may be made by the debtor of such bank, etc., in the notes or obligations thereof, issued as currency, etc., as against the assignees, whether such bank retains an interest therein or not, but provides the act shall not extend to any assignee who, heretofore, shall have become such, bona fide, in the settlement of his claims against such bank or banker. These enactments have been thought severe and unjust, by some, but we must suppose them to be such as were believed to be called for by the circumstances of the times. At all events, their constitutionality can not be seriously questioned, for they affect only the remedy, which is always subject to the legislative will, and in refusing to permit proceedings to be instituted against the sheriff they do not impair the validity of the contract.

Is the return of the sheriff, then, in compliance with this law ? In substance, it recites, that he has made the amount of the costs, $73.59, and the said Valette, not being an assignee, bona fide, of the prom-237] issory note on which the judgment was *rendered, in the settlement of any claim or claims of his against said bank, he had received the balance of the judgment, $4250, in the notes of the bank.

Here was the case, where the sheriff was bound to act. He must do so at his peril. Neither mistakes of law or of fact excuse him. If he refused the notes, and made his levy, he was liable to the defendants, if Yalette were not such bona fide assignee; if he received them, he was liable to Yalette, if he sustains the character and relation to the bank he assumed. The sheriff, then, was bound, for himself, to decide the question. He has done so, and set it out in his return ; and the remedy against the sheriff, if any exist, must be, in our view of the case, by an action for a false return.

Judgment affirmed.  