
    Mark Prewett vs. William P. Standifer.
    Payment of an execution to a sheriff, in anything hut constitutional currency, is no satisfaction thereof, except by the consent of the plaintiff; but such consent may be implied, as well as express, and may be inferred from long acquiescence.
    Where a sheriff returned an execution with an indorsement that he had made the amount thereof in the notes of a particular hank, and no further steps were taken for more than six years ; and it did not appear that the plaintiff ever disclaimed the act of the sheriff; and this long delay was entirely unexplained ; it was held, that the plaintiff must be presumed to have known of the sheriff’s return, and acquiesced in his act; and that an execution issued after such delay, under such circumstances, ought, upon motion, to be entered satisfied.
    EkRou, from the circuit court of Monroe county; Hon. Stephen Adams, judge.'
    It appears from the record, that on the 24th day of October, 1837, William P. Standifer recovered a judgment in the circuit court of Monroe county, against Mark Prewett, for $193 06 damages, and $15 50 costs. Upon which judgment an execution was regularly issued, and placed in the hands of the sheriff, returnable to the April term of the court, 1838. That at the April term the sheriff returned the execution, with the following indorsement thereon, to wit;
    
      “ By virtue of this writ, to me directed, I have caused to be made the within mentioned sum of $193 06, in Aberdeen and Pontotoc Railroad and Banking Company, of the goods and chattels, lands and tenements, of the within named Mark Prewett; which said sum of $193 06, before the judge within mentioned, at the day and place within contained, I have ready, as this writ requires.
    
      “ April 24, 1838. R. C. Bailey, Sheriff.”
    
    
      On the 15th day of October, 1844, another execution was issued on the same judgment, which was placed in the hands of the sheriff, and levied upon a negro boy, as the property of Mark Prewett. On the 1st day of November, 1844, the defendant moved the court to have the last named execution entered satisfied; which motion the court overruled, and the defendant excepted, and brought the case to this court by writ of error.
    
      John Goodwin, for plaintiff in error.
    The only question presented by the record is, does the return of the sheriff, indorsed on such execution, amount to a satisfaction ?
    It is clear that the return of the officer is a satisfaction of the execution. The return shows that the sheriff had made of the goods and chattels, lands and tenements of the defendant, the sum of $193 06, which sum he had ready to render to the plaintiff. The presumption is, that it was gold or silver, and is, therefore, a satisfaction. But, suppose the sheriff did not collect the amount of the execution in gold or silver, still the same consequence would follow. If the sheriff received from the defendant current bank notes, (there is, however, no evidence of this) which were passing at par at the time, it would be a satisfaction of the execution. Current bank notes are regarded as currency, and are a legal tender, unless objected to at the time the payment is offered to be made. 1 Peters Con. R. 120; 9 John. R. 120; 1 J. J. Marshall, 503. The sheriff is not merely a naked agent, subject to the absolute control of the creditor, as to his conduct, but may, in the exercise of a sound discretion, receive bank notes. 4 Cowen, 422.
    The question does not arise in this case whether the sheriff received bank notes. It does not so appear from his return. The return shows, that by virtue of the execution he had made the sum of $193 06. It speaks of nothing but dollars, which he has ready to render the plaintiff, and is a “satisfaction of the writ.” The sheriff was commanded by the writ, that he should make of the goods and chattels, lands and tenements of the defendant, the sum of $193 06. To this he answered, that of the goods and chattels, lands and tenements of the defendant, he had made said sum, and had the same ready to pay to the plaintiff. Is not this a full and complete satisfaction of the execution 1 It is as absolute a satisfaction as if the sheriff had indorsed on the execution “satisfied” in full. By the issuance of the execution, and the return of the sheriff thereon, that, of the goods and chattels, lands and tenements of the defendant, he had made the amount of the execution, which was in hands, ready to be paid to the plaintiff, as commanded by the writ, certainly the plaintiff had pursued his remedy to that point, at which the law declares his debt satisfied. If he has done this, his right to pursue the defendant further is at an end, and he must look to the sheriff and his securities, if any breach of duty has been committed by him. There is no evidence to show that the sheriff exceeded his authority, so as to furnish the plaintiff in the execution an additional remedy against the sheriff; and the right to pursue the defendant in the execution also at the same time. His right against the defendant, being extinguished by the return of the sheriff, that the money had been made, the law forces him to pursue the sheriff and his security for his failure to pay over the money ; the payment of the money to the sheriff deprives the plaintiff of the right to another execution against the defendant. The return of the sheriff furnishes no evidence that the amount of the execution had been paid in depreciated bank paper; no such proof was introduced upon the trial of the motion to enter satisfaction. There was no proof to show, upon the supposition that the payment was made in bank notes, that they were not equivalent to specie, in point of value. According to the authorities above cited, it would be a payment of the debt, and extinguish the force and effect of the judgment and execution. In this light the plaintiff has regarded the sheriff’s return. He has stood by for seven years, acquiescing in the payment to the sheriff for that length of time, taking no steps to set aside or otherwise vacate his return, until his estate has been settled up and his representatives discharged, and thus depriving the defendant in the execution of any right to recover back his money. This is so manifestly unjust, as not to. be tolerated for a moment. It is confidently insisted, that the circuit court erred in overruling the motion to have satisfaction entered.
    Davis, for defendant in error.
    This case has been brought to this court to reverse the decision of the court below for refusing the motion of the plaintiff in error to have satisfaction of the judgment entered upon the sheriff’s return, made to the April term, 1838, of the circuit court of Monroe county; that return is in the language following: “By virtue of .this writ to me directed, I have caused to be made the sum of $193 06, in Aberdeen and Pontotoc Railroad and Banking Company.”
    The counsel for the plaintiff in error assumes in his argument that the return of the sheriff shows that the amount of the execution was made in gold or silver, when the return, in fact, shows the very reverse. The statement is, that the amount was made in the money of the Aberdeen and Pontotoc Railroad and Banking Company.
    The question raised by the counsel in his argument, that a payment ,in bank paper is a valid payment, has been fully settled by this court, in the cases of The Planters Bank v. Scott, 5 How. R. 246, and Tutt v. Fulgham, lb. 621.
    It is insisted that no proof was introduced to show in what kind of money the payment was made. The sheriff’s return was introduced, and was conclusive upon that subject; at all events it shows that it was not gold or silver, thereby throwing the burden of proof upon the plaintiff in error.
    The court will bear in mind that this is not a motion to dismiss an execution improperly issued, but to satisfy the judgment on the ground of payment.
   Mr. Justice Clayton

delivered the opinion of the court.

In November, 1837, Standifer obtained a judgment against Prewett, the execution upon which was returned to the April court, 1838, with an indorsement by the sheriff, that he had made the amount, in the notes of the Pontotoc and Aberdeen Railroad and Banking Company.

No further steps appear to have been taken until October, 1844, when another execution issued. At the succeeding term, a motion was made to have satisfaction entered on this execution, which was overruled by the court, and the case thence comes up by writ of error.

It has been repeatedly decided by this court, that payment of an execution to a sheriff, in anything but constitutional currency, is no satisfaction thereof, except at the option, or by the consent of the plaintiff. But this consent may be implied, as well as express, and may be inferred from long acquiescence. Anketell v. Torrey et al. 7 S. & M. 467; Buchanan v. Tinnin et al. 2 How. S. C. R. 258.

In this case more than six years elapsed, from the time of the first return, to the issuance of the next execution. This delay is entirely unexplained. The bank notes received by the sheriff, if still in his hands, are barred by the statute of limitations, so that no recovery could probably be had upon them, against the bank. We must presume the plaintiff knew of the return, and he ought at once to have disclaimed the act, if he did not intend to be bound by it. He has no right to throw the loss, arising from his own negligence, upon the defendant. Had he acted promptly, his right to good money would have been presumed. But the delay in this cause, standing without excuse or explanation, justifies the conclusion, that he acquiesced in the act of the sheriff. There are circumstances which would satisfactorily explain the delay, and repel any presumption arising from it, but none such are shown in this case. Of this character would be a disavowal of the act, the insolvency of the defendant, and his subsequent solvency.

The law aids the vigilant, not the slothful, and if the plaintiff should sustain loss, it is chargeable to his own remissness.

The judgment will be reversed, and satisfaction of the execution directed to be entered.  