Harvey v. Walden , 23 La. Ann. 162 ( 1871 )

Ludeling, C. J.

On the eighteenth day of January, 1862, the plaintiff obtained from the Fourth District Court of New Orleans-an order of sale, and placed it in the hands of the sheriff, the defendant, to be executed. Under this writ the sheriff sold property and; received the price of the adjudication in Confederate treasury notes,, which he deposited in hank.

The plaintiff does not appear to have called for the price until after.the capture of New Orleans by tbe Federal forces, to wit, iu. August, 1863. It is proven that tbe defendant was willing and ready at all times after tbe sale to pay tbe currency received by him.

This suit was instituted on the eleventh August, 1863, to make the-sheriff and his sureties pay in lawful money of the United States the* price of the sale aforesaid.

The evidence establishes that Confederate money was the circulating medium at the time the order of sale was placed in the hands of the sheriff and when the sale was made under it. The plaintiff resided in New Orleans, and he must be presumed to have known that no other currency was in general circulation then in January and February, 1862; and we can not resist the conviction that by placing the; writ in the hands of the sheriff to sell property of his debtor, he authorized him to receive Confederate treasury notes for the price.

We know from the history of the times, that the sheriff could not have demanded with safety any other money in payment of the price of property sold at public auction, and that he could not have enforced the payment of any other kind of money at that time, and still he was obliged to execute the writ. The demand of the plaintiff is without equity.

But, even if the plaintiff’s conduct did not authorize the sheriff to receive Confederate treasury notes in payment of the price of the property, it is clear that his right of action against the sheriff is not for moneys received by him, for he received none, but for malfeasance in office in having sold property and received other than lawful money in payment thereof.

If this suit could be regarded as such an action, the plea of prescription of one year, filed in this court, would have to be maintained. 0. C. 3536 (3501).

It is therefore ordered that the judgment of the district court be affirmed with costs of appeal.