
    James Allen v. James H. Wood et al.
    
    Clerks. Motion against. Will not lie. Whin. Wherejudgmentishad upon a note, the surety will not he entitled to a motion against the Clerk of the Court for failing to pay over to him for his reimbursement moneys received on the judgment from the principal, after the surety has satisfied the same by the payment of the proper amount, to the judgment creditor.
    FROM CANNON.
    Appeal from the Circuit Court. ¥m. H. Wil-liamsom, Judge.
    James S. Barton for J. H. Wood et al.
    
    St. John & Finley for Allen.
   Nicholson, C. J.,

delivered the opinion of the Court.

This was a motion made by Allen in the Circuit Court of Cannon against Wood, as Clerk of that Court, for $500, alleged to have been paid into his hands as such Clerk, by Isaac Gunter, on a judgment rendered in the Circuit Court in favor of Young against Gunter, Smith & Allen, and Stone for $411.20. In the written notice of the motion, Allen, who was one of the defendants in the judgment, in order to show his right to the judgment and to make the motion, states: “Which judgment I had paid off, as endorser, to said Young, and have his receipt for the same, and am now entitled to said money.”

On the trial of the motion, Allen produced and proved Young’s receipt “of James Allen, payment in full of a judgment rendered June 12, 1861, against Isaac Gunter, Mary Smith, James Allen and "William Stone.”

Allen also produced and proved the receipt by J. A. Wood, Deputy Clerk, from Isaac Gunter, the principal in the judgment, of the amount "due on said judgment.

Upon these fa.cts the Circuit Judge held that the payment by Allen to Young of the judgment, was a satisfaction and extinguishment thereof, and consequently that the payment made by Gunter to Wood, the Clerk, could not have been made on the judgment, but that Wood received the money as an individual, and therefore the motion would not lie against him as clerk and his sureties.

The motion for judgment having been dismissed, Allen has appealed to this Court.

The proof in the cause makes out a case of the absolute payment and satisfaction of the judgment of Young against Gunter and others. There is nothing-indicating that it was only a purchase of the judgment by Allen, and a transfer thereof to him. But by the payment as proved, the judgment was extinguished and all proceedings thereon afterwards were nullities. It follows that when Gunter afterwards made the payment to Wood, he did not make it on any subsisting judgment. The Circuit Judge was, therefore, correct in holding that neither the Clerk nor his sureties were responsible on motion for the money so paid to Wood.

The judgment is affirmed.  