Planters' Bank v. Scott ( 1840 )

Mr. Justice Ttjiineb.

stated.the case, and delivered the opinion of the court.

It appears from the record before us, that the execution on which the return of the sheriff, that he had not levied, &c. was made, was returnable to May Term, 1838; and it does not appear that any other execution issued until the 18th of November, 1839. The sheriff therefore, had no authority to receive or receipt for the plaintiff’s money, on the 27th of August, 1838.

But, even if he had an execution at that time in his hands in the case, he had no authority to receive in payment Citizens’ Bank money, or any other than the legal currency of the country ; and the agreement between him and the defendant, Scott, was a mere private agreement between themselves, unauthorized by law, and not sanctioned by the plaintiffs or their attorney.

The repeated decisions of this court, the common law, and the adjudged cases in other states, Bully sustain the court in reversing the judgment of the court below. See 9 John. Rep. 263. 1 Cowen, 46.

The judgment is reversed, and cause remanded with leave to the plaintiffs to sue out execution in the court below.