Morton v. Walker , 8 Miss. 554 ( 1843 )

jPer Curiam.

Walker, the defendant in error, had obtained judgment in the circuit court of Yazoo county, against the plaintiffs in error, for ten thousand two hundred and eighty-three dollars and sixty-five cents. He sued out an execution, which was delivered to the sheriff, who received in payment of principal and interest six hundred and fifty-five dollars in Louisiana and Commercial Bank of Manchester money, and ten thousand six hundred and eighty dollars and fifty-seven cents in Union Bank notes, in satisfaction of this case. The .plaintiff in the execution at the next term after the execution was returned, moved the court to set aside the return, and for a new execution, which motion was sustained. To reverse this judgment the plaintiffs in error bring up the case.

The facts, so far as they are material, are these: The execution was received by the sheriff the 24th of January, 1840, and levied [on "negroes belonging to Moxton on the 23rd of March. The negroes were advertised for sale." Some time previous to the day of sale, the attorneys of the plaintiff in the execution gave the sheriff a written notice that Union money would not be received in payment of the execution. The sheriff was also several times told not to take Union Bank notes, as they would not be received by the plaintiff. Morton, it seems, was also apprized of the determination of the plaintiff. The negroes levied on were left in possession of Morton, who produced them on the day of sale, but they were not sold, and by an arrangement between Morton and the sheriff, the former was permitted to take them off and dispose of them at private sale, under an injunction that he should immediately pay over the money. Morton afterwards brought a considerable part [of the money in the notes of the Union Bank, and was again informed by the deputy sheriff that it could not be received. He however deposited it with the sheriff. The sheriff for some time refused to receive the money, stating to Morton that he was instructed not to receive that .kind of money. He ultimately however agreed to receive it, and indorsed the receipt mentioned above on the execution. Union Bank notes were then at about forty per cent, discount. The testimony discloses other circumstances, but nothing which could alter the case. '

On this statement of the 'facts, it must be manifest that the court did right in sustaining the motion. There is no rule of law by which Morton could be authorized to pay in depreciated money, or that would justify the sheriff in receiving it, when they both had notice that it would not bo received by the plaintiff. The sheriff was required by the process to make so much money. He did not comply with the command by taking paper so depreciated as to be worth but little more than half the amount. The levy made by the sheriff will not, under the circumstances, protect. Morton. The levy was waived, and Morton sold the negroes himself, or at least took them off. By this conduct the sheriff it is true became liable, but this does not discharge Morton. The plaintiff may pursue his remedy against either or both. If the negroes had been sold by the sheriff for Union money, or if the levy had not been raised, the question might be different; but this is a voluntary payment on the part of Morton. In this view we are fully sustained by the case of Tutt’s Administrators. Fulgham, 5 Howard, 621. The case of Codwin v. Field, 9 J. R. 263, and the case of the Bank of Orange County v. Wakeman, 1 Cowen, 46, are also in point.

The plaintiffs /in error, it seems, demanded that a jury should be impannelled to try the facts, but the case was not such as to require the intervention of a jury.

The judgment must be affirmed.