
    William H. McFarland vs. Andrew L. Wilson, et al.
    A sheriff has no power, after the return-day of an execution in his hands has passed, to receive any money from'the defendant in the execution, as a payment of any part thereof, even though he still retains the execution in his hands.
    The sheriff is merely the officer of the law, to enforce the process of the court, and when that process has expired by limitation, the sheriff’s powers expire with it.
    The fact that the sheriff is also the Special ¿gent of the plaintiff in the execution, will not authorize him, in his official character, to receive money upon the execution, after the return-day has expired.
    In error from the Adams circuit court.
    At the May term of the circuit court of Adams county, 1838, William H. McFarland obtained judgment against Andrew L. Wilson, and D. W. Connelly, for 6832 ^ dollars.
    Executions were regularly issued from term to term and stayed.
    On the 18th of May, 1839, a ji. fa. was issued returnable to tbe October term, 1839, upon which the sheriff, Mark Izod, made the following return : “ Not proceeded against, by order of William Harris, agent.”
    On the 10th of August, 1840, another execution was issued, returnable to the November term, 1840.
    The defendants filed their petition, stating that they had at different times, paid to the sheriff of Adams county, the following sums; $ 1000 on the 19th October, 1839; $ 1000 on the 16th December, 1839 ; $ 500 on the 9th January, 1840; $ 2000 on the 21st January, 1840; and $ 1000 on the 25th January, 1840, in all amounting to $ 5500, as shown by five receipts annexed, and exhibiting an account of said payments, copied from an account made out in the hand-writing of the deputy shei-iff, but not signed; alleging that the new sheriff and attorneys for plaintiff rqfuse to allow said payments as a credit, except $2000; and praying a supersedeas of said*Iast execution, and that the same be quashed, or the payments credited thereon ; which supersedeas was granted November 17th, 1840.
    
      The plaintiffs in execution denied the payments had been made on the said execution, except as to the $ 2000 credited thereon.
    The defendants in execution prayed, that the facts contained in said petition may be inquired of by a jury.
    At the December term, 1841, a jury found that “ said defendants have paid upon said judgment and execution in said petition mentioned, the following sums, at the following dates, to wit: $ 1000 December 19, (October 19,) 1889; $ 1000 December 16, 1839; $500 January 9,1840; $2000 January 21,1840; f> 1000 January 25, 1840; making $ 6500 in all.
    Whereupon it was considered by the court, that the said judgment and execution be credited with the sum of $ 5500, at the dates above-mentioned. <-"
    The court were requested by plaintiff in execution, to charge the jury as follows.
    1. If the jury believe from the testimony, the execution on which the payments purport to be made, was returnable on the second Monday of October, 1839, and the payments were in fact made after that time to the sheriff, they must find for the plaintiff in execution.
    2. That an execution in the hands of the sheriff, after the return-day thereof, will not authorize the sheriff to receive money on the same; and any receipt given by him as sheriff, after the return-day of such execution, are not entitled to be credited on the same. The court refused to charge as requested, to which plaintiff in execution excepted.
    The evidence is set out in the bill of exceptions. A. L. Carpenter, the deputy sheriff, stated that he received from Wilson, on the execution returnable to the October term, 1839, the sums of money mentioned in two of the receipts produced by defendants, to wit: $1000 received Natchez, 19th October, 1839, and $ 2000 received January 21st, 1840, both in Railroad money; and that said execution remained in the sheriff’s hand until after the date of the last mentioned receipt. And there was an order from the attorney of the plaintiff in execution, authorizing the sheriff to receive currency on said execution, which was attached to said execution.
    
      Robert N. Wood, another deputy sheriff, stated he received in Railroad money, the sum of $ 1000, on the 16th December, 1889, and $ 500 on the 9th January, 1840, on the said execution, with the order of the attorney attached. That the October term failed on account of the yellow fever, and the sheriff made few returns, and said execution and order remained in the hands of the sheriff until after the last payment was made to witness, and until after the 25th January, 1840. That Railroad money was used as currency at the times of all said receipts, but was at a discount of four or five per cent, and the same kind of money was received on other executions by the sheriff.
    Mark Izod’s receipt of the 25th January, 1840, was produced in evidence as follows.
    “Received from A. L. Wilson, one thousand dollars, on account of an execution in favor of Brander, McKenna & Wright, Railroad money. “ M. Izod, Shei'iff.”
    
    “ 25th January, 1840.”
    William Harris stated, that in 1839, he was the duly authorized agent of said McFarland, plaintiff in execution, and at that time held the attorney, George Winchester’s, receipt for the claim on which said suit was brought, and other papers to show his agency, and his acts as, agent were recognized by McFarland.
    In the spring of 1839, he told Wilson he might pay the amount of his execution in the currency of the state; that he was absent during the summer, and returned in November.
    In the latter part of December, 1839, he called on the sheriff to ascertain what amount had been collected on said execution, who informed him $ 3000 had been collected in Railroad money, and $ 2000 of it paid to the attorney, G. Winchester. He told the sheriff he was willing to receive the $ 1000 then in his hands, which the sheriff declined paying him without an order from the attorney. They then went to the office of George Winchester, to obtain his order, who refused to give it, and witness refused to have anything farther to do with it.
    It was admitted by attorney for defendants in execution, that no execution issued after the October term, 1839, until the 10th of .August, 1840.
    
      Josiah Winchester stated, that in September, 1839, Wilson called upon him and stated, that Harris, in the spring before he went to the north, agreed he might pay said judgment in the currency of the state; that he knew Harris had the control of said execution, and the sheriff was pushing him; and he requested witness to give him an order to use, in the event Harris did not return before the money had to be made;• and if Harris was not satisfied on his return, he would make it all right.
    Upon these representations, witness gave Wilson an order in the name of Winchester & Black, authorizing the sheriff to receive currency on said execution, which order witness supposed was never used.
    On the 3d of January, 1840, witness was informed by Izod, that he had collected $> 2000 in Railroad money on said execution, which kind of money Harris had authorized him to receive.
    Witness received the $ 2000, and told Izod to receive nothing but good money for the balance, as witness believed, from a letter recently received from Brander, McKenna & Wright, that Harris had no further control over said execution.
    Five or six days after this, Wilson and Izod called on him, when he informed Wilson, he did not think Harris had any further control over said execution, from a letter he had recently received from Brander, McKenna &' Wright, of New Orleans; that he had written to them to ascertain further about it, but had received no answer.
    He told Wilson, he could not receive any but good money for the balance of said execution, unless otherwise instructed by Brander, McKenna & Wright. Witness did not know of the payment of any further sum than' the $ 2000, until the suing out of the supersedeas.
    The errors assigned are 1. That the court erred in giving the credits allowed by the jury, upon the execution. 2. In refusing the instructions asked for by defendant’s counsel, below.
    
      George Winchester, for the plaintiff in error.
    Upon the above facts, contained in the record, had the judge in the court below a right to adjudge, that the $500 paid to the deputy, Wood, on the 9th day of January, 1840, the $2000 paid to the deputy, Carpenter, on the 21st January, 1840, and the $1000 paid to the sheriff, on the 25th of January, 1840, should be credited upon the judgment and execution of McFarland ?
    These payments were made by Wilson, to the two deputies and to the sheriff, in Railroad money, after the return term of the execution, on which they are stated to have been made, and when there was no execution in the hands of the sheriff, or his deputies. The two deputies state, that the execution which was returnable to the October term, 1839, remained in the hands of the sheriff, until after these payments were made, in January, 1840, and that the payments were made on this execution, and an order from the attorneys of the plaintiff annexed to it.' But the sheriff’s return on said execution is, “not proceeded against, by order of William Harris, agent.”
    ■ These payments were made, too, after both the sheriff, Izod, and the defendant, Wilson, had been notified by Josiah Winchester, that nothing but good money would be received for the balance of the execution, beyond the $2000 in Railroad money, which were received by J. Winchester from the sheriff, on the 3d of January, 1840.
    Harris states that he was McFarland’s agent, in 1839, and had the attorney, G. Winchester’s receipt, and other papers, as proof of his agency, and that his acts, as agent, had been recognized by McFarland, and that in the spring of 1839 he told Wilson he might pay the execution in currency.
    • That in the latter part of December, 1839, Izod, the sheriff, told him he had collected $3000 in Railroad money, and had paid $2000 to the attorney, G. Winchester ; that he called on G. Winchester, with the sheriff, to obtain his order, that the $1000 should be paid to him, and that upon G. Winchester’s refusal to give the order, he, Harris, refused to have anything further to do with it.
    (This is utterly false. He never applied to me for such an order, nor did I ever hear or dream that one dollar had, been collected after the $2000 had been paid to Josiah Winchester, until I learned it from the supersedeas. The evidence, too, shows that Izod had not collected it in December, nor until the 25th of January, 1S40, at which time the whole $5500 were collected. At no time did the sheriff have but $3000 collected.)
    Upon the facts, as stated in the record, the only authority upon which the $3500 in Railroad money was received by the .sheriff and his deputies, on the 9th, 21st, and 25th of January, 1840, was the execution, returned “ not proceeded against, by order of William Harris,” but retained in the sheriff’s possession, the agreement of Harris, as agent of McFarland, in the spring of 1839, that Wilson might pay the execution in currency, and the order given by Josiah Winchester to Wilson on. the sheriff, to receive currency on the execution.
    This was no authority, either in fact or in law, to the sheriff, to collect one dollar in any kind of money, after the return day of the execution.
    Much less was it an authority to his two deputies, to collect in January, 1840, after Harris ceased, by his own statement, to have or exercise any further agency, and after both the sheriff and Wilson were notified that Harris had no longer the control of the execution, and that nothing but good money would be received for the balance.
    The payment, by Wilson, of the $3500 in Railroad money into the hands of the sheriff and his two deputies, without the knowledge of McFarland or his attorney, and after it was notified to them such- money would "not be received, was a fraudulent combination, between Wilson, the sheriff, and. his deputies, and Harris, to force this depreciated paper* upon McFarland, in payment of the judgment, if it could be done. But if it should fail, then the sheriff was to return these Railroad notes to Wilson.
    This appears plain from the facts in the record, in which the fraud is but clumsily concealed.
    The sheriff gives no credit on the execution for these payments ; but a loose paper is filed with the execution, containing a statement of the payments, in the hand-writing of a deputy, but not signed by either the deputy or the sheriff. The order obtained by Wilson from Josiah Winchester, to be used only iri the absence of Harris, is attached to the execution.
    The execution is retained after the return day by the sheriff, and, while in his possession, and not even in the possession of his deputies, some of the payments are made to one of his deputies, and some to another, while some are made to the sheriff. The execution is afterward returned into the office, with the return, “ not proceeded against, by order of Harris, agent.” These acts are kept concealed from Josiah Winchester, and from the plaintiff and his attorney, until another execution is taken out, and then the statement in the hand-writing of the deputy, the five receipts of the deputies and the sheriff, are paraded, to obtain a supersedeas, when for the first time it is made known to the plaintiff’s attorney, that these ¡$3500 have been received by the sheriff and his deputies, in Railroad money, which is not worth twenty cents in a dollar.
    It would' make the lawan engine of the grossest fraud and injustice, if, upon the facts of this case, it should be the judgment of the law, that McFarland is bound to take this worthiest paper from the sheriff, as a payment of his judgment.
    But the law is otherwise, and the judge should so have instructed the jury.
    The execution, to the October term, 1839, and the order of the attorney to receive upon said execution currency, in payment, and the consent of Harris, in the spring of 1839, that Wilson should pay said execution in currency, gave no authority to the deputyj Wood, to receive ¡$500 in Railroad notes, oh the 9th of January, or to the deputyj Carpenter; to receive the ¡$2000 on the 21st of January) or to the sheriff to receive the ¡$1000 on the 25th January.
    All the authority the sheriff or his deputies had, as officers, to collect the judgment, was derived from the execution, and the express instructions of the plaintiff or his agents and attorneys.
    This authority ceased to exist, so soon as the execution was returnable.
    
      Neither the deputies nor the sheriff had any authority, by process of law, to collect on the 9th, 21st, or 25th of January, 1840, nor had they any authority, as private agents, from McFarland, his attorney or agents.
    They not only never had any authority, as officers of the law, or as private agents of McFarland, to collect in Mississippi currency, after the return day of the execution to October term, 1839, but they were expressly forbidden ; and the money was paid by Wilson, and received by the sheriff, with a full knowledge that it would not be received as a- payment by McFarland and his attorney.
    The law on this question is too well settled, not only in-the courts of Great Britain, and of the other states of this union, but in our own courts.
    What ought to be the judgment of this court upon reversing the judgment of the court below?
    Should a venire de novo be awarded, or should the petition and supersedeas thereon in the court below be dismissed?
    The verdict of the jury is not res adjudicata, as a jury is not a constituent part,mor does it belong to a proceeding of this kind. No such proceeding is known at the common law, or authorized by statute, as a venire facias, to summon a jury to try the facts contained in a petition, for a supersedeas to an execution, or for an order of court to have payments made to an officer of court on execution entered as a credit on the judgment or execution.
    It was error in the court 'below to grant the prayer of defendants in execution, that “ the facts contained in the petition should be referred to a jury.” The delay too, occasioned by sending this case to the jury, or nisi prius docket to abide its turn among the jury cases, manifests the danger and hardship of such an innovation upon the authority of the law.
    Instead of a summary disposition of this application to the judge for an allowance of these credits on the execution at the November term, 1840, to which the execution was returnable, it had to take its turn among the causes in court on the jury docket, and was not reached or tried until the December term, 1841, an unnecessary and unauthorized delay of more than one year after it ought to have been summarily decided by the judge.
    At the common law, juries have the judicial power to try facts only in common law suits or actions where by regular pleadings disputes of parties in matters of fact are kept separate throughout the record from disputes in matters of law, and are brought to distinct and separate issues, those of fact concluding to the jury, and those of law to the judge.
    It is only in such regular common law actions that the verdict of a jury is res adjudicóla upon the facts of a case, or that the court has the power to award a venire to bring in a jury to try facts.
    In summary proceedings by petition or motion made or addressed to the judge, the court has no power to bring in a jury, and if brought in, the jury have no judicial power to try and decide facts, unless such power is expressly given by statute, and in my opinion, under the distribution of the judicial power as it is expressly made and conferred by the constitution of this state, our legislature cannot confer judicial power upon a jury in proceedings by petition or motion. At all events, it is not conferred by any statute of this state, and it clearly does not exist at common law.
    Whether these $3500 dollars in Railroad money were in fact paid by Wilson to the sheriff and his deputies on execution, as stated in the petition, and whether, if in fact made, the sheriff and his deputies had authority to receive such payments, and the plaintiff was bound to have them entered as a credit upon some one of the executions issued on the plaintiff’s judgment, were questions both as to the facts and the law, which the judge alone had judicial authority to decide, and it was error to refer the facts contained in the petition to a jury, and the verdict of the jury is a nullity. At the utmost the judge could only, like a chancellor in the chancery court, call in a jury to aid his conscience, and the verdict is no more res adjudícala, than a verdict in chancery.
    
      This court, upon a reversal, has no authority to award a venire de novo, and as they are bound to render the proper judgment, the proper judgment upon the facts of the case is to dismiss the petition and supersedeas.
    It appears by the petition and the answer of plaintiff in execution, that the $2000 received by J. Winchester, is credited on the execution, and the only complaint contained in the petition is, that the $3500, the balance of the $5500, is not allowed.
    If a jury was regularly brought in to try the facts in the petition, on the trial the court ought to have instructed the' jury, as requested by plaintiff's attorney, to wit, that'—
    
      “If the jury believe from the testimony, the execution on which the payments purport to be made, was returnable on the second Monday of October, 1839, and the payments were in fact made 'after that time to the sheriff, they must find for the plaintiff in execution.
    2. “ That an execution in the hands of the sheriff, after the return-day of such execution, will not authorize the sheriff tó receive money on the same; and any receipts given by him as sheriff, after the return-day of such execution, are not entitled to be credited on the same.”
    Under the judgment of the court below, on what execution is the $3500 to be credited ?
    If it is credited on the execution returned by Izod to October term, 1839, then it will directly contradict the return made by the sheriff, “ not proceeded against, by order of W. Harris, agent.”
    If credited on the last execution, which Was superseded in the hands of the new sheriff, Newman, how is the plaintiff to get his money?
    As to the agency of Harris in this transaction, he states he was an agent of McFarland, in 1839, that he had G, Winchester’s receipt as attorney, and other papers showing his agency, and his acts were recognized as agent by McFarland, blit the court are left in the dark as to the nature of his agency, from his failure to exhibit the receipt and other papers.
    The facts were, that the note on which the judgment was obtained, was placed in my hands by L. R. Marshall, and after judgment Marshall received a letter from McFarland, directing me to pay over the money, collected on the judgment, to Brander, McKenna & Wright, of New Orleans. This letter was sent by Brander, McKenna & Wright, I believe, to William Harris, who presented it to Marshall, and Harris, either being at that time a member of that firm, or if not, their agent, obtained from Mar-' shall my receipt, and took the control of collecting the debt, giving a stay on the execution from time to time, until 1839, when he authorized the defendant to pay the execution in the currency of the state. After the sheriff had collected the. first $2000, Brander, McKenna & Wright wrote a. letter directing me to account only to them for the proceeds of the judgment.
    It will be seen that the receipt of Izod for the $1000, dated January 25, is for $2000, received on an execution of Brand'er, McKenna & Wright, and not on McFarland’s execution.
    About the first of January, 1840, Harris applied to me to pay .him the $2000 collected to Josiah Winchester, which I offered to do if he would produce, my receipt, and show his authority to receive it, but which he never did. He never applied to me to obtain an order for $1000 in the hands of the sheriff. Most of the time during these transactions I was at Jackson, attending the courts. I was absent at the trial of the petition, or these facts would have been more fully brought out, and exhibited, more clearly the whole, transaction, though they would not materially have altered the merits. The $2000 were- received from the sheriff, because he stated to J. Winchester they had, been collected on the execution, and because they had been .collected at a time when Harris: was understood to have control of the execution, and to have authorized it.
    On the subject of the authority of sheriff, to receive money in discharge of an execution :
    The sheriff has no right to receive money under an execution after the return day, unless the execution has been previously levied. Chapman v. Harrison, 4 Rand. 336.
    And if payment be made to sheriff without authority on his part to receive the same, such payment will not be binding on the creditor, and consequently will not operate to discharge the debtor. Same case.
    Where no return is made on the execution, and the receipt given by the sheriff for the money bears date after the execution was returnable, such receipt will be prima facie evidence, that the payment was made at the date of the receipt. Same case.
    A sheriff cannot legally receive money on an execution after the return day, unless he has levied on property before. Bndd v. Ferguson, 5 Littell, 19.
    Where an officer has authority to act, he will be presumed to have acted correctly ; but where the existence of some fact is necessary to give him authority to act, such fact will not be ■presumed from his having acted. Ibid.
    Where the sheriff has no right to sell, though the return-day has not arrived; in such case he has no authority to receive payment. This principle sustained in the case of Pegram v. Thornton's Administrator, 5 Rand.
    In that case the writ of fi. fa. issued the 1.9th of April, 1824, returnable to the 15th of October following, and the sheriff made return that he had levied on property and taken a bond for the forthcoming thereof, which was forfeited. After the forfeiture of the bond, and before the return-day of the execution, the sheriff received the money and made a further return thereon, that the same was “ satisfied, the money being paid before a motion was made.” The court was of opinion, that the right to sell, terminated when the bond was forfeited, that the sheriff, after such forfeiture, had no authority to act under the execution, but was simply to make return, and the payment could not be considered as made to him' in his official character.
    The principle of law recognized in the above cases is, that the authority of the sheriff to receive money under a fi. fa. is a consequence of the right to sell the debtor’s property under such writ. This authority to receive payment, continues so long as the right to sell continues, and no longer.
    As a general rule, the right to sell expires with the return day of the execution. But where an officer takes goods under a fi. fa. before the return-day, he may sell after the return-day, and this without a vedi'ex. and even after he is out of office. Doe dem. Steven v. Douston, 1 B. & A. 230. Ayre v. Aden, Oro. Jac. 73. Wheaton v. Sexton' s Lessee, 4 Wheat. 503.-See case cited above, Pegram v. Thornton’s Administrator, where the right to sell expires before the return-day has arrived.
    By act of legislature, passed February 16, 1838, the sheriff has until the middle of the term to make return of all executions, and power to sell during same spade of time.
    The receipt of money by a sheriff on an’ execution, after the elapse of the term to which it is made returnable, does not bind the plaintiff. Planters Bank v. Scott, 5 How. 246.
    
      Sanders and Price, for defendants in error.
    The proof in the cause, shows that the money was paid, as stated in petition for supersedeas, that William Harris, the agent of the plaintiff, authorized the sheriff to receive Mississippi currency, which was received, and that the paper money paid was currency during the time of payment. It appears also, that the attorneys for the plaintiff received $ 2000 of the money so collected, and that the agent applied for the residue, which was withheld by the interposition of one of the attorneys for plaintiff. The facts in the cause fully sustain the correctness of the finding of the jury, and the only question remain-ing for the consideration of this honorable court is, as to the correctness of the decision of the judge in the circuit court, in refusing to give the instructions as asked.
    We are apprized that this honorable court has determined, as a general principle, that a sheriff .has no authority to receive money upon an execution, by virtue of such execution, after the return-day. But the facts of this case show that the sheriff had authority, independent of the execution, to receive the money; for Harris, who was the general agent of the plaintiff in execution, instructed and empowered the sheriff before the execution issued, to receive the currency, and after it was received applied for it, and was willing to receive it, because he could use it as par funds, but was prevented by the attorneys and the attorneys themselves received $ 2000 so collected by the sheriff after the return-day, which was a ratification of the acts of the sheriff. The attorneys themselves gave to the sheriff an order to receive from defendants said currency. The deputy sheriff proves that he received said money, by virtue of an order .attached to the execution from the attorneys of the plaintiff. That order is missing; its existence is unquestioned, nay,, admitted by plaintiff’s attorney. Its extent is not shown, but all the presumptions-are, that the sheriff was fully authorized by it to do what he did, and the jury, who are the exclusive judges of the fact, are sustained in their verdict by the testimony in the cause. The laws of agency are familiar to the court, and slight circumstances of acquiescence will ratify acts of an agent; for in this case the sheriff must be regarded as the‘agent of the plaintiffs, and his having subsequently received the money, is a ratification which estops him to deny them.
    The attorney’s conflicting instructions, given after he had received the $ 2000, are not entitled to any weight, because he tells the sheriff that he doubts the agency of Harris, from a letter he had received from Brander, McKenna & Wright. What that letter Avas, or what interest they had in the matter, we are not advised. As a principle of law, the general agent will of course control the attorney at law, for Harris declares, in his testimony, that he held the receipt of Messrs. Winchester &. Black, for the collecting of this demand. The witness, Mr. Josiah Winchester, was not of that firm, and his instruction could not control the sheriff, who had been previously instructed by the agent. This proceeding, in its nature, was an equitable one. It would be a great hardship upon the defendants, who paid their money at a time when it was currency, and could be used as at par, to be compelled to pay over, and compelled to take back the currency, now greatly depreciated, and of little or no value, when the agent was willing and anxious to take the money. Shall the principal be allowed now to change his ground, because of the interposition of one of his agents against the act of the other, or will not equity and law alike compel him, if he has sustained injury, to have his remedy against his agents, whose conflicting acts have produced the evil ?
    We therefore contend that there is no error in the judgment and proceedings, and that the judgment of the circuit court be affirmed.
    
      Quitman and McMurran, on the same side. '
   Per Curiam.

Application was made in the court below to supersede an execution in favor of the plaintiff against the defendants on the ground of payments made to the sheriff The defendants set up payments to the amount of §5500, but ,the plaintiff only admits the sum of § 2000. An issue was made up and a jury impaneled to try the question of payment, which resulted in a finding, that at different times the defendant, Wilson, had paid to the sheriff the sum of § 5500.

The points presented are mere questions of law, which were raised on the trial of the issue, and are brought to our notice by a bill of exceptions taken to a refusal of the court to charge the jury as, requested'by the plaintiff’s counsel. The evidence is set out in the bill of exceptions, but it is important only for the purpose of showing the propriety of the charges asked.

The court was asked to charge the jury, first, that if they believed the execution on which the payments purport to have been made, was returnable the second Monday of October, 1839, and the payments were in fact made after that time to the sheriff, they must find for the plaintiff in the execution; and second, that an execution in the hands of the sheriff, after the return-day thereof, will not authorize the sheriff to recover money on the same, and any receipts given by him as sheriff after the return-day, are not entitled to be credited on the execution.

The charges involve merely the single question as to the power of the sheriff, after the return-day of an execution has passed. The payments which are claimed as credits, were made in depreciated bank paper, at the dates following, to wit; $500 on the 9th of January, 1840; $2000 on the 21st of January, 1840; and $1000 on the 25th of the same month. The execution was returnable the second Monday-of October, 1839, and seems to have been then returned with this indorsement, to wit; Not acted on by order of plaintiff's attorney. It is also admitted that no alias writ of fi. fa. issued until the 10th of August, 1840; so that it is entirely evident that the sheriff received the money without any process in his hands. His right to do so is a question which surely cannot admit of a doubt. The sheriff is the officer of the law, whose duty it is to enforce the profcess of the court. Without process he has no authority. The execution is his legal warrant, without which he can do nothing. And this warrant has a fixed duration; it is to be returned at the next term of the court; with the return term its Validity ceases, and a new process emanates. The sheriff’s authority also ceases at the return term, and he must wait until new process comes to his hands. He cannot seize property because he had once authority to do so, nor can he receive money because he had once held an authority,for doing so. This point was expressly so decided in the case of'the Planters Bank v. Scott, 5 How. 246. It is true the books inform us that a sheriff may sell property even after he is out of office, but this he is authorized to do in virtue of a legal seizure made under process, by which a right vested in him.

But it is insisted in argument that the sheriff received these payments as agent, or by the. authority of a duly authorized agent. If this be true, it does not change the law in relation to his power as sheriff. Such a fact might have- given rise to other appropriate charges which would have made the payments valid and binding on the plaintiff in the execution, but the defendant’s counsel asked none such. His agency however, and also his authority under an authorized agent were, to say the least, left doubtful. His receipts were given in his official capacity, and the case presented by the record is such as to have authorized the plaintiff in execution to treat all his acts as official. The charges asked were undoubtedly the law, and the cáse before the court made them pertinent, and the court therefore erred in refusing them. The judgment must be reversed, and the cause remanded.  