
    E. C. Pate et al. vs. Smith Parks et al.
    
    Sheeipj. Principal and agent. Payment. Motion. If a sheriff give his receipt in the ordinary form for notes received by him for collection, and obtain judgment thereon, and execution on said judgment comes to the hands of a constable, who collects the money, upon motion by the plaintiff against the latter, if he can show that he acted in such collection as the agent of the sheriff, a payment to the latter would be a good defence; but otherwise, if he acted as the agent of the plaintiff. The payment to the sheriff, however, upon the first hypothesis, must be a bona fide payment; a mere loan, which the parties after the service of the notice agreed should be considered as a payment, would not amount to a defence to such motion.
    PROM DYER.
    This was a motion in the Circuit Court of Dyer county, against E. C. Pate, a constable, and his sureties, for money collected by said Pate, which he failed to pay over to the plaintiffs. At the June Term, 1856, Rains, Special Judge, rendered judgment for the plaintiffs. The defendants by writ of error brought the cause into this Court.
    Richardson, for the plaintiffs in error.
    Carthel and Cochran, for the defendants in error.
   Caruthers, J.,

delivered the opinion of the Court.

This was a motion against the plaintiff in error for failing to pay over a sum of money collected by him upon execution for defendants in error. The collection of the money is admitted, and so is the fact that it has not been paid over to the plaintiffs in the motion. But the defence is, that it was paid over to Dawson, the sheriff of Dyer county. It appears that the claim was placed in the hands of Dawson, who executed his receipt for it in the usual form, and prosecuted the case to judgment; after which the execution came to the hands of Pate.

If he received the execution from Dawson, or under his direction, and was thus acting for and under him, a payment to him would be a .good discharge, if Dawson’s undertaking in his receipt was such as to constitute him agent for the collection of the note. But, on the other hand, if Pate received the execution from the plaintiffs, or took it out for them or under their direction, or if it were placed in his hands otherwise than by or for Dawson, he would be bound to the plaintiffs, although he may have paid it to Dawson. In any event, to exonerate himself he would have to prove that he actually paid over the money collected to Dawson. A loan of that or a greater amount would not be a payment; and no agreement to convert the loan into a payment, after the notice of this motion, would answer the purpose.

Upon these rules and principles the liability of Pate must depend; and the facts stated in the judgment and bill of exceptions do not sufficiently show how the case is in these particulars; and we therefore reverse the judgment, and remand the cause for a rehearing.  