
    Cook vs. Smith.
    Nashville,
    January, 1829.
    The officer who commences the execution is bound to finish it, because an execution is an entire thing — and when property enough is levied upon to satisfy the execution, the defendant is discharged, and the officer becomes liable for the debt.
    If the officer who made the levy procures another officer to sell, which latter fails to pay over the money to the plaintiff in the execution, the officer making the levy, is subject to judgment by motion, in favor of the plaintiff in the execution.
    Notice to an officer of an intention to move against him for judgment, is a sufficient application to him for the money which he is bound to pay over.
   Opinion of the court delivered by

Judge Catron.

Mo - tion against a constable under the act of 1823, ch. 21, before a justice, judgment given; appeal to circuit court, judgment affirmed; appeal in error to this court.

Smith had the execution in his hands, levied it, advertised the property for sale; before the day, he got Aider-son, another constable, to attend to the day of sale, sell the property &c. This Alderson did, taking the debt in Nashville Bank Notes — this was contrary to the instructions of the plaintiff. Part of the amount was paid the plaintiff; fifty dollars were offered him of the Nashville notes which he refused, the hank having stopped payment.

The first objection is: that Alderson collected the money and returned the execution satisfied; and that the action only extends to him who actually receives the money.

To this it is answered: that he, who as an officer, commences the execution is hound to finish it, because an execution is an entire thing. The moment the levy is made, the property is in custodj- of the law; if enough is levied the defendant is forever discharged, and the officer levying is liable for the debt; this responsibility it is impossible for him to shift at pleasure to other hands. It matters not what agents or deputies he employs to aid him in executing the writ, he is the responsible man. (6 Ba. Ab. 161 — 1 I)al. R. 313.) A receipt by the agent is a receipt by himself — the same as sheriff and deputy. 7 Com. D. 545.

It is next insisted, that application should have been made for the money, and this proven, before a motion could be made.

The plaintiff, Cook, applied to the agent for the money and got $>50; the balance was offered to be paid to him, if he would take Nashville bank paper, which was refused. This was sufficient. Alderson, by Smith’s letter was the agent deputed to pay Cook.

We furthermore think the statute remedial in its nature, enforcing common law rules, to coerce officers to pay over monies collected by them; and that no further application is necessary than notice that the motion will be made, being a substitute for an attachment at common law against the officer, who clearly had no good defence in the present instance. Judgment affirmed.  