Jeremiah W. Crane vs. James W. Bedwell et al., 25 Miss. 507

Mr. Justice Yerger delivered the opinion of the court. In October, 1846, a judgment was rendered in the circuit court of Clarke county, in favor of Crane against the defendants in error. On the 30th of April, 1847, an execution was issued on this judgment, and the sheriff returned that he had received on the same the amount of the principal, interest, and costs. A motion was made to set aside that return, which was overruled by the court, and an order made.on motion of the defendants, entering satisfaction of the judgment.

The proof in the case is very clear, that the sheriff never received any money from the defendants in this suit, while he had in his hands an execution against them. It is equally clear, that in February, 1847, before any execution came into the hands of Lee, as sheriff, the defendants paid to him, for the plaintiff, the amount of the judgment rendered against them in. October, and took the receipt of Lee for the same. This payment was made principally in notes of the Bank of Mobile, at that time a specie paying bank.

It is well settled, that a sheriff, as sheriff, has no authority to receive money without an operative execution in his hands. If he does so receive it, his acts are unofficial and not obligatory upon the plaintiff, unless he acted in the character of private agent of the plaintiff. 2 S. & M. 269; Ib. 284. The payment, therefore, made to Lee in this case, does not bind the plaintiff, and is no satisfaction of the judgment, unless it was received by the direction and the consent of the plaintiff. If so received by him, the plaintiff is bound by it, as the act of his agent.

On this point the proof is satisfactory, leaving no doubt that Lee acted under the direction of the plaintiff in receiving the money, when he had no execution in his hands.

Lee proves that before any execution came into his hands, the “ plaintiff directed him, if the defendants paid the money, as they said they would, without execution, to pay his attorneys their fees, and to keep the balance in his hands for him.” Moody, the clerk of the court, proves that in January, 1847, Crane applied to him for an execution on the judgment, and that he then told Crane he did not think an execution could issue until after the April term, 1847, because the defendants had a right till then to except to the opinion of the court given in vacation, overruling their motion for a new trial, and so no execution was then issued.

Moody, at the same time, told Crane that the defendants had sent word that they would pay the judgment at the special term of the probate court, in February, which witness believed they would do. To this Crane replied, “ that if they came and paid the money, it was well and good; that he had instructed Mr.

Lee what to do; that is, to pay his attorneys each $100, and retain the balance, and if the money was not paid at that time, that witness should issue an execution and he would risk it.” This testimony leave's no doubt but that Crane authorized Lee to receive the money without an execution, because he knew that none would have issued if the defendants paid it at the special term of the probate court, which they did.

It is true, that James McDougald proves that Crane directed Lee to take nothing but gold and silver in payment of that part of the judgment in which he was interested; but that, as he o.wed his attorneys two hundred dollars, to that amount he could take any money they would receive. Looking upon Lee as the private agent of the plaintiff, these instructions, not having been communicated to defendants, do not authorize the plaintiff to disregard the action of his agent in receiving the notes of the Bank of Mobile.

But if it be conceded that he had a right to disavow the acts of his agent in this particular,it was- his duty to have done so when first informed of it, and to have notified the defendants thereof. This he never did. On the contrary, it is proved, that when informed by Lee of what he had done, he made no objection to the kind of money received, but declined settling with Lee, because Lee claimed as a credit the sum of $275 paid to the attorneys of plaintiff, and for which he held their receipt. Let the judgment be affirmed.