Bank of Orange County v. Wakeman

1 Cow. 46

Opinion

Oakley, said, the Sheriff had a right to receive any thing in satisfaction, the departing with which would operate to the injury of the defendant. Suppose he had received bank . bills : these are but promisory notes, and no one will pretend that they could not be received, in satisfaction. The mere levying upon property by the Sheriff is a discharge. Hero he has received a negotiable promisory note, which has pro-, bably passed into the hands of a bona fide holder. The question of loss is one between the Sheriff and the plaintiff, equally, as if the former had received the money, and converted it to his own use.

J. 0. Hoffman, jun. contra, said that giving a promissory notéis not payment of a debt; but if it were otherwise, he insisted that the Deputy having acted without any legal ot actual authority, the plaintiff was not bound by this proceeding, and it could not, for that reason, operate as satisfaction.—And of this opinion was the Court, and they refused the motion; placing their opinion expressly upon the ground that the receipt of the note in payment^ and the discharge and return of the execution, by the Deputy, satisfied, were not in the regular and legal course of his official duty.

Motion denied,

Footnotes

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(a)

This decision accords with the principle of the previous ones in this Court, though none of them, I believe, present this precise case of a return of the execution satisfied. In Codwise v. Field, (9 John. 263) the Coroner gave a receipt in full of the ca. sa. engaging to pay the plaintiff! in consideration of a debt due from the Coroner to the defendant. The plaintiff sued out an alias ca. sa. and collected the money; and this was holden well; whereas, had the Coroner received the money, it was agreed that this would have been a satisfaction. (Vid. Cro. Eliz. 208, 309. 1 Lutw. 588. Cro. Eliz. 237.) And where the officer takes security lor the debt in the regular course of the execution this will be a satisfaction. (Hoyt. v. Hudson, 12 John. 207.) As if he levy under a fi.fa. and take a receipt of the goods as security for the debt; and this though the property seized be insufficient, provided the security thereupon taken be for the whole debt, (ibid.) And the simple act of levying upon goods sufficient to satisfy a fi. fa. will discharge the defendant, who may plead such levy in bar to an action of debt on the judgment. (Id.) and vid. Clark v. Withers, (2 Ld. Raymond, 1072. 6 Mod. 290) and Ladd v. Blunt, (4 Mass. Rep. 403.) Also, 9 John. Rep. 99. So if the Sheriff himself pay the money. (Reed v. Pruyn & Staats, 7 John. 428. Sherman v. Boyce 15 John. 443.) And although, as between the Sheriff and the plaintiff, the former would doubtless be estopped by his return, (9 John. 98.2 Ld.Raym. 1072. 6 Mod. 290,) yet the principal case decides, that the plaintiff is not.