Murray v. Charles

5 Ala. 678 | Ala. | 1843

COLLIER, C. J.

The only; question presented in this case is, whether the clerk was authorised to receive the money due on the judgment so as to discharge the defendant from further liability. In Currie v. Thomas, [8 Porter’s Rep. 293,] which was an action on a promissory note, the defendant pleaded that an action had been previously brought on the same note, and that he had paid the sum due thereon, to the clerk. The court held, that independent of an authority derived from a statute, money cannot be lawfully paid to the clerk in vacation, or in any other manner than as the officer of the court in term time; and after noticing the legislative acts upon the subject, the conclusion is attained, that a payment made to him before judgment, will not discharge the debtor. In that case, the act of 1834, «to provide a more summary mode of collecting money from clerks” is cited, but as it was unnecessary, none of its provisions were particularly examined. The fifth section enacts, “ that in all cases where money shall be paid to the clerk of any court, the party entitled to receive it shall have the same remedy for its recovery and the same damages for its detention, as are now provided, and allowed by law for money paid to clerks on execution, and it is hereby expressly made the duty of all clerks to receive and account for all such sums of money, as may be paid to them by either party as well after, as before the issuance of the execution.” The latter part of this section seems to us very clearly to confer upon clerks the authority to receive money on judgments rendered in their courts. This is rendered more obvious, if possible, by the terms employed, which not only give the right, but injoin the receipt of the money as a duty, whether a collection had been required to be made by execution or not. The provision is too plain to admit of illustration — it fully authorised the action of the circuit court upon the defendant’s motion, and the judgment is consequently affirmed.