McKay v. . Smitherman

64 N.C. 47

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Dick, J.

An execution can be satisfied only by payment, or by a seizure and sale of a defendant’s property.

In. the ease before us there was no seizure and sale of property, and the question to be determined is, Did the payment, by McKay, of Confederate notes to the Sheriff, discharge the execution ? •

On the face of the execution there were instructions to the Sheriff, to receive in payment “ cash in bank bills of this State, or specie.” The plaintiff in the execution, had a right to give these instructions, Atkin v. Mooney, Phil. 31—and they were mandatory to the Sheriff. The law recognizes nothing in the payment of debts but money; i. e., coin or currency which is declared to be a legal tender. If any other kind of currency is received by a Sheriff in payment of an execution, with the express or implied consent of a plaintiff, it will discharge the debt. In our case the Sheriff was acting under special instructions, and his failure in the performance of his duty rendered his action illegal and void.

The execution was not returned “ satisfied,” and the special return of payment in “Confederate currency notes,” did not discharge the judgment. Taylor v. Kelly, 6 Jon., 324; Griffin v. Thompson, 2 How. U. S. 244.

There is no error.

Pee Cubiam. Judgment affirmed.