[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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