By the Court.
McDonald, J.
delivering the opinion.
[1.] The process was amendable by law. The plaintiff in error employed counsel to defend the cause, who confessed judgment and entered an appeal, and on the appeal trial,, he moved to dismiss the cause, on account of a defect in the process. The process was amendable by statute; but if it hadL not been, it had the effect ©f all process, for the defendant [648] appeared and defended. It is not like the case of Wheeler vs. The State, 21 Ga. Rep. 153. That was the case of a contract and the Court only construed the contract. A contract is not amendable except by the parties themselves or with their consent.
[2.] The defendant paid the money due on the note to the Sheriff during the pendency of a previous suit instituted on the same note in the Inferior Court. The Sheriff has no authority to receive or collect money from the defendant, in virtue of his office of Sheriff, until he has in his hand an execution commanding him to levy it of the property of the defendant. A payment therefore, to him as Sheriff prior to his having this authority is no payment. He is not the agent of the plaintiff to collect it, and his having collected or received the money, and his notification thereof to the plaintiff, or his attorney, imposes no obligation on the plaintiff to incur the expense of sending for it, or to risk its transmission by mail. The plaintiff in error controlled the money, withdrew it from the hands of the Sheriff, and directed him to deliver it to his own attorneys. The charge of the Court to the jury was in accordance with our view of the law, and the judgment must be therefore affirmed.
Judgment affirmed.
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