34 Ala. 496 | Ala. | 1859
The effect of the order made by the court, upon the motion for a new trial, was, that the judgment in favor of Upshaw was to stand, unless Screws should pay all the costs in four months.
By virtue of his office, the clerk was authorized to receive the costs, the payment of which was the condition upon which the new trial was granted. But he had not the right to accept of anything but money in payment. The negotiation between the sheriff and the clerk, however it might bind the latter, cannot affect the plaintiff in the judgment, who in no wise assented to it. Without Upshaw’s consent to receive something else in satisfaction of the costs, nothing but an actual payment in money, within the time prescribed, could be deemed a compliance with the condition imposed by the court. Williams v. Charles, 7 Ala. 203; Cook v. Bloodgood, 7 Ala. 687; Bobo v. Johnson, 3 S. & P. 385; Bank of Orange Co. v. Wakeman, 1 Cowen, 46 ; Keller v. Scott, 2 Sm. & M. 81.
The offer of. the sheriff to pay the costs, when he' haci no money with which to make the payment, and the reply •ofthe deputy clerk waiving payment at the time, cannot, as against the plaintiff in the judgment, be deemed equivalent to actual payment. How it might be, if Smews had, within the time prescribed, made an actual tender of the money to the clerk, and the latter had refused to receive it, we need not inquire. So such proof was made in this case.
The judgment is affirmed.