
    Cooney vs. Wake.
    A constable who receives a note and executes his receipt for the collection of it, has the power to sue out a warrant, prosecute the suit to judgment, take out execution, receive the money and execute a binding and valid receipt to the defendant in Che execution; but he cannot, by virtue of his agency, or as an officer, receive any thing from the defendant but money, and if he do, it is not a discharge of the execution.
    Cooney recovered a judgment against Wade before a Justice of the Peace in Gibson county, on the 28th day of February, 1839. A ft. fa. was issued on the 7th day of July, 1842, for sixty-three dollars and seventy-nine cents. Wade presented a petition to Harris, Judge, alleging, 1st, that no ft. fa. had issued on the judgment within twelve months and a day from the rendition of the judgment; and, 2d, that the judgment had been discharged; and praying a writ of supers'edeas, to the end that the case be bi ought up to the Circuit Court and the Ji.fa. quashed. The writ was ordered and was issued. , At the March term, 1844, Harris, Judge, presiding, a motion- was made to quash the execution, and a jury was ordered to come and ascertain by their 'verdict whether the said judgment had been paid.
    It appeared, that McBride, a constable, had charged himself with the collection of the claim which Cooney held against Wade, by the execution of a receipt, on the 25th July, 1839, in which he promised to collect or return the note; that Wade placed notes in the hands of McBride for collection, with a promise that he would collect them and appropriate the money to the satisfaction of the judgment of Cooney against Wade. McBride collected the money on Wade’s claim and appropriated it to his own purposes. After McBride went out of office and after the appropriation of the money collected, he gave Wade receipts for so much money, in discharge of Cooney’s judgment.
    The Judge charged the jury, that the constable, neither by virtue of his office, or the agency with which he was invested by the undertaking to collect the money, was authorized to take notes in discharge of the fi. fa. or any thing but money, and that the fi. fa. was not discharged unless the money, when collected, was applied to the satisfaction of Cooney’s judgment.
    The jury returned a verdict, that the defendant had not paid the debt, and the court awarded a procedendo.
    
    The defendant appealed.
    Totten, for Wade.
    
      Fitzgerald and J. G. Harris, for Cooney.
   GeueN, J.

delivered the opinion of the court.

In this case, it appears that Cooney placed a note on Wade in the hands of McBride, a constable, for collection. Wade was sued, and a judgment obtained. He then placed several notes in the hands of McBride, the constable, to be by him collected and applied to the satisfaction of Cooney’s debt.

These notes were collected by McBride, and the money was used by him. .

After the money was so used, and after he went out of the office of constable, McBride executed to Wade receipts for the sums so collected and used by him, as so much money paid in discharge of Cooney’s judgment.

Cooney having received no part of his money, caused an execution to be issued against Wade, who applied for a superse-deas and brought the cause into the Circuit Court.

The court was of opinion, that the reception of Wade’s money by McBride did not constitute a payment to Cooney, and that McBride had no power to discharge Wade’s liability by the receipt he gave him for the money he had collected and used. Wade appealed to this court.

We think there is no error in the record. It is true, that McBride was Cooney’s agent, and had a right, as such, as well as by his office of constable, to receive his money and give Wade an acquittance therefor; but he had no power to receive payment in any thing but money.

In taking the notes from Wade, they did not become the property of Cooney. McBride had no power to make them such, by any contract with Wade; nor indeed did he assume to do so. He undertook, as Wade’s agent, to collect the notes, and apply the money to Cooney’s debt. Until collected and so applied, the notes and the money that was received upon them belonged to McBride. But while it was in McBride’s hands, as Wade’s money, it was used by him. When he executed the receipts, no money was paid, nor did he have any in his hands belonging to Wade. He was Wade’s debtor to the amount of money he had used; and this debt, it was agreed, should be regarded as money in his hands for Cooney. This, McBride had no right to do. He had no power to discharge Cooney’s debt by assuming the debt himself; and this was in effect the transaction.

Let the judgment be affirmed.  