
    
      The State, for the use of T. H. Taylor, vs. John R. Easterling and others.
    
    In general, an action for money had and received, will not lie against a sheriff until there has been a demand and refusal, or some misapplication of the plaintiff’s money, or some assertion of an adverse right to it.
    Since the Act of’39,-dispensing with a return of nulla bona, against the sheriff, the same rule, perhaps, applies to an action on the sheriff’s bond against his sureties, to recover money received by the sheriff
    Where the sheriff is dead, and his insolvency ascertained, no demand and refusal need be proved.
    A levy on lands, and an entry of the sale thereof by the sheriff in his sales hook, are sufficient evidence to charge the sheriff and his sureties with the proceeds of the sale.
    In an action against the sureties to a sheriff’s bond, for money arising from the sale of land, the plaintiff, in order to show that his judgment was, at the time of the sale, the oldest unsatisfied lien, and therefore entitled to the proceeds, may show that judgments older than his, remaining open, were in fact satisfied; and he is not required to procure satisfaction to be entered on the records.
    If a sheriff is embarrassed in deciding to whom to pay money levied by him, where judgments remaining open are alleged to be satisfied, he may protect himself from suit, by submitting the question on rule to the court, and having an issue in fact made up between the creditors, to try the question of satisfaction. Per O’Neali,, J.
    An attorney may receive the money due on an execution, and enter satisfaction on the record.
    In an action against a sheriff’s sureties, for money collected by the sheriff, and claimed to be applicable to plaintiff’s judgment, a statement in writing by the attorney of plaintiff in the original action, who is dead, that the money is applicable to plaintiff’s judgment, is inadmissible as evidence against the sureties.
    
      Before Frost, J. at Georgetown, Spring Term, 1844.
    This was an action against the sureties oh the official bond of J. L. E. Easterling, late sheriff of Georgetown district. The object of the action was to recover the proceeds of two lots of land, sold by the sheriff, as the property of Percival E. Vaux, and alleged to to be applicable to a judgment for $1,185 74, entered up on the 17th April, 1830, owned by the plaintiff, T. H. Taylor, as assignee.
    The plaintiff produced in evidence the entry of a levy by the sheriff, under a judgment and execution against Vaux, of two lots of land in Georgetown ; and the sheriff’s sales book, in which a sale of the lots was entered, as made on the 2nd April, 1832, for the sum of $564 87.
    Several judgments against Vaux older than the plaintiff’s, to wit, one in favor of Thomas W. White, entered up on the 16th Nov. 1809 ; one in favor of James Gordon, entered up on the 17th April, 1812; one in favor of John Tun no, entered up on the 7th June, 1819 ; one in favor of Smith & Cut-tino, entered up on the 4th June, 1822 ; and one -in favor of J. L. E. Easterling, entered up on the 24th March, 1829, remained open on the records. To prove that they were in fact satisfied, the following evidence was relied on. A statement of John G. North, the attorney on record on the plaintiff’s judgment, and on Easterling’s, in which Vaux was credited the amount of the sale of the lots, and the balance due on the 19th April, 1833, stated to be $766 46. This statement was objected to, but the objection was overruled. The account current of A. W. Campbell, with the plaintiff, in which he was credited, on the 22d January, 1835, with the amount ofVaux’s draft for $860 34 ; which sum was •equal to $766 46 with interest thereon from the 19th April, 1833. An assignment to the Bank of the State of South Carolina, of a decree in equity, in favor of P. W. Frazer, against Vaux, junior to plaintiff’s judgment; and the testimony of A. W. Campbell, taken by commission, in which he verified his account current, and stated that he was a director of the bank, and that at the time of the assignment, which was given to secure a loan to Vaux, the decree in equity was the oldest unsatisfied lien against Vaux. A list of judgments in the clerk’s office against Vaux, proved by the clerk to be a true list — on this list, Tunno’s judgment was marked satisfied. Vaux died in 1840, and his executor testified that no demand had been made for payment of any of the judgments in the clerk’s list, older than the plaintiff’s. On Easterling’s judgment, satisfaction was entered on the 8th February, 1833, by his attorney. A receipt of the sheriff for the costs on White’s judgment, dated in 1812, was produced; also a memorandum book of Yaux, in which the principal was stated to have been settled by note. This memorandum was received as eyidence, though objected to. No execution in the case of iSmitk and Cuttino, was ever entered in the sheriff’s office. A letter from Easterling to Yaux, dated 25th March, 1832,, mentioning certain urgent executions against him, which were all junior to his own. Also a statement of Easter-ling, dated the same day of the executions in his office-against Yaux, in which his own was not mentioned.
    The plaintiff further proved, that Easterling died in 1833. That an execution against him, in favor of Cebra and Cumining, had been returned nulla bona; and that after his death, proceedings in the Court of Equity had been instituted by Cebra and Cumming, in behalf of themselves and other creditors of Easterling, against Waterman,, his executor, and the sureties to his official bond, in which demands against Easterling, not including the plaintiff’s, were established to a large amount.
    Under the charge of the presiding judge, the jury found for the plaintiff the amount of the sale of the lots, without interest.
    The defendants appealed, and now moved for a new trial.
    Hunt, for the motion,
    contended, 1st. That the evidence was insufficient to charge the sheriff with the receipt of the proceeds. There was no proof that the land was ever conveyed to the purchaser, or that the sheriff ever actually received the proceeds of the sale. The mere levy and entry in the sales book, are not sufficient evidence of the receipt of the money by the sheriff.
    2d. That the plaintiff was bound to show a demand made on the sheriff, or his legal representative, before action commenced. This was the rule in an action for money had and received, against the sheriff himself, and the same principle would apply in an action against the surety. The rule is based on that universal principle, that every officer is presumed to have done his duty, until the contrary appears. The law presumes that the sheriff has the money ready, when called on for it, and therefore, it will not permit an action to be brought against him, until by demand and refusal, proof that he has violated his duty is made. 2 Brev. 52 ; 1 Hill, 394; 2 Bail. 51.
    3d. That the plaintiff was bound to procure satisfaction to be entered on the records, in the cases older than his, remaining open, before he could compel the sheriff to apply the money to his judgment. Is not an older judgment remaining open, a sufficient excuse to the sheriff to retain the money ? The sheriff is bound to take notice of senior judgments remaining open ; 2 Bail. 412. If this is true, how can he be compelled to pay money to a junior creditor, as long as an older judgment remains unsatisfied ?
    4th. Admitting, for the purposes of the argument, that satisfaction on the record was not necessary to be proved; then the question comes up, was the evidence sufficient to show satisfaction in fact ? ■ As to Easterling’s judgment, it is clearly insufficient. The evidence of payment there, is the mere statement of Mr. North, the attorney on the record; and he submitted, that an attorney, after judgment obtained, and entered up, has no authority to enter satisfaction, or bind his client by a statement that the judgment has been paid.
    5th. Was Mr. North’s statement, which was offered to show that the money was applicable to plaintiff’s judgment, competent evidence ? There is no principle of law under which its competency can be sustained. . It was the mere declaration of a third person not under oath. It is said that he was the agent of the parties. If he was, he was not acting within the scope of his authority, when he made the statement. 1 M‘C. 404.
    
      Lesesne, contra.
    Can an action against a sheriff’s sureties, be maintained without proof of demand and refusal 1 The rule in 2 Bail. 51, is that the statute of limitations will not run, and interest will not accrue until demand ; 1 N. and M‘C. 213 ; and he contended, that the commencement of the action was a sufficient demand, even as against the sheriff, and that the authorities had no application to a suit against the sureties.
    
      There is no rule' of law or reason which requires proof of satisfaction to be by entry on the record. It is enough for the plaintiff, that he has shown that all judgments older than his own were in fact satisfied. Suppose the case of a plaintiff dead, and having no legal representative, or in a foreign country, how could the plaintiff have satisfaction entered on the record.
    As to the competency of Mr. North’s statement, he cited 1 M!M. Eq. 191.
    Hunt, in reply.
    Will the court compel the sheriff to pay the money to the plaintiff, on less evidence than would be sufficient to authorize entry of satisfaction on the record ? The sheriff was bound to pay the money to the first unsatisfied judgment. No judgment is unsatisfied, as long as it remains open on the record.
   Curia, per

O’Neall, J.

The various grounds of appeal present four material questions to be answered by this court.

1st. Was a demand for the money claimed to be recovered, necessary to be made before the suit could be maintained against the sheriff’s securities?

2d. Was the proof here, enough to charge the sheriff with the receipt of the money?

3d. Could the sheriff be sued, while older executions remained unsatisfied on the records ?

4th. Was the statement of Mr. North admissible in evidence?

Under these questions, some minor matters will be considered.

1st. In general, there is no doubt that an action for money had and received, will not lie against the sheriff, until there has been a demand and refusal, or some misapplication of the plaintiff’s money, or some assertion of an adverse right to it. Wright vs. Hamilton, 2 Bail. 51; Sims vs. Anderson, 1st Hill, 394. The same rule may, and perhaps does, apply to actions on the sheriff’s bond against himself and his securities. Formerly, no such question could have been entertained in an action against the securities alone; for they could not be sued until after there was a return of nulla bona against their principal. This pre-requisite complied with, they were chargeable on proof of the plaintiff’s money being received by the sheriff. But since the Act of ’39, s. 4, p. 26, dispensing with the return of nulla bona, I presume the securities generally are not chargeable, until there is some evidence of demand, or some legal reason shown why one could not or need not be made. In this case, however, there can be no room for any such question; the sheriff is dead, and no demand could be made upon him. The administration of his estate necessarily commingled the plaintiff’s money in his hands, with the other assets of his estate, and hence, in that point of view, no demand was necessary. Proceedings in Chancery, in the case of Cebra and Camming vs. Waterman, executor of Easterling, and a fi fa returned nulla bona, abundantly show the insolvency of the sheriff, and hence the use of the plaintiff’s money by him ; and in such case, no demand is required.

2d. I entertain no doubt, that on the satisfaction of the elder executions being established, the proof was abundant to charge the sheriff with the sale of the two lots. The levy and sale appear from his return and books ; and hence, without looking further, he is chargeable with the proceeds of the sale, if applicable to the plaintiff’s claim. There is no doubt that a levy, until accounted for, is an implied satisfaction of an execution; and this proof would be enough to charge the sheriff. This point underwent a very full argument and review in the case of Mayson vs. Irby and Day, Dec. 1828, in the Court of Appeals in Equity, at Columbia, and received the unanimous sanction of the court.

3d. This makes it necessary to look to the question, whether the judgments antecedent to the plaintiff’s (Taylor) were satisfied. For although it is true that the sheriff may be exceedingly embarrassed in deciding to whom to pay money, when several executions standing unsatisfied in his office are alleged to be satisfied, yet when the fact of satisfaction is established by proof, in an action against him, the plaintiff in the first fi. fa. unsatisfied, would be entitled to recover. When such a state of facts exists, he (the sheriff) may protect himself from suit, by submitting the question on rule to the court, and having an issue in fact made up between the creditors to decide the question of satisfaction. The judgments of White and Gordon were, by lapse of time, tobe presumed as paid, and if any thing was necessary in aid of such presumption, Vaux’s memorandum book, and the fact that no demand had been made upon his executor for payment, might be given in evidence. This is upon “the necessity of receiving less evidence as to a remote transaction.” Tunno’s judgment was one of those marked satisfied, in the clerk’s list, and when it had lain dormant for near 13 years, without any demand of payment, it might very well be presumed to have been satisfied immediately after recovery. The execution of Easterling was marked satisfied, in 1833, by Mr. North, as his attorney. An attorney may receive the money due on an execution, and hence may enter satisfaction. We are, therefore, bound to conclude that that execution was paid to Mr. North, and hence does not conflict with this claim. The judgment of Smith and Cutti-no alone remains. It had been obtained 10 years before the sale of the lots. No execution was entered in the sheriff’s office, and no claim of payment has ever been made from Mr. Vaux or his representative. This might justify the jury in concluding that it was paid. The testimony of Mr, Campbell verifies his account current, which shows that the balance of the plaintiff’s judgment, after applying the sales of the lots, was paid by him; and thus that the plaintiff’s, and all other judgments older than the decree in equity of Frazer vs. Vaux, were put out of the way, so as to enable Mr. Campbell to swear, as he does most positively, that Frazer’s was the oldest unsatisfied lien .on Vaux’s property, when he obtained for him the loan ’"from the Bank. The proof, when looked to in this way, shows, perhaps, clearly that the plaintiff’s, as the oldest unsatisfied lien, was entitled to the proceeds of the sales of the lots, and by applying them and the subsequent payments, the execution was satisfied. This is enough for the plaintiff.

4th. But it is necessary to inquire whether North’s statement was admissible in evidence. We think it was "not. As the attorney of Easterling and the plaintiff in two separate cases at law, he had no right to make a statement in one case, which would bind the plaintiff in the other. If he had admitted, in Easterling’s case, the receipt of the money, that would have been, as has already been said, evidence of its satisfaction. So here, so much of the statement which speaks of a payment of $300 made by Campbell, maybe admissible as evidence of the payment of that sum to Mr. North ; adding that sum to the sale ol the house, leaves the balance of the plaintiff’s judgment, which was paid by Mr. Campbell. But so much of the statement as went to charge the sheriff with the sale of the house and lot, was clearly hear-say, and inadmissible. It does not come within the rule which admits the entries of third persons to be given in evidence, as settled in Gilchrist and King vs. Martin and West, 1 Bail. Eq. Rep. 492 ; and Cruger vs. Daniel et. al. 1st M'Mull. Eq. Rep. 191. But excluding that proof, the plaintiff had made out a sufficient case to charge the sheriff with the sales of the lots.

The motion for a new trial is dismissed.

Richardson, Evans, Butler, and Frost, JJ. concurred.  