Taylor, Dickson, Graves & Co. v. Kelly, Newkirk & Co.

51 N.C. 324 | N.C. | 1859

The defendants offered in evidence a receipt, of which the following is a copy: "Received of L. A. Merriman four hundred and forty-nine dollars 25-100, in full of an execution in my hands for collection, in favor of Kelly, Newkirk and Co. v. Thomas E. Shepherd and O. R. Hallingsworth, in Duplin County Court, returnable to October term, 1857.

Signed, JOHN D. ABERNATHY, Sh'ff."

October 23rd, 1857.

The defendants proved by Merriman that he settled the excution [execution] in favor of the present defendant as described in the above receipt, by paying to the sheriff two hundred dollars in money, and the balance in judgments against sundry persons; that the sheriff stated at the time of the settlement that he had the execution in favor of the present plaintiffs against the present defendants, and it was understood between him and the present defendants, that the execution against the latter was to be satisfied by his collecting the execution against Shepherd and Hallingsworth. It further appeared that this settlement took place during court week, while the executions were in the sheriff's hands, in October, 1857. The sheriff did not return the execution. His Honor, upon hearing the cause, allowed a satisfaction of the judgment to be entered to the amount of two hundred dollars, being the amount of the money received by the sheriff, and disallowed the balance, being the judgments received by the sheriff in the settlement. From which order the defendants prayed an appeal, which is allowed. We are of opinion that the defendants have no just cause of complaint against the judgment which was rendered in the Court below. Had the sheriff returned the exetion [execution] in favor of the plaintiffs with an entry "of satisfied" endorsed thereon, the plaintiffs would have been bound by it. — Or had money been paid to and received by the sheriff in satisfaction of the execution, it would have been discharged, whether the fact of payment were endorsed or not, and the plaintiffs would not have been authorized to take out an alias; Murrell v. Roberts, 11 Ired. Rep. 424; Hammett v. Wyman, 9 Mass. Rep. 138. But as the sheriff did not receive from the defendants payment in money, and made no entry of satisfaction on the execution in favor of the plaintiffs, the question arises, were they bound by the act of the sheriff in taking "judgments against sundry persons" in lieu of money? We are decidedly of opinion that they were not. These judgments were not articles which the sheriff had the power to sell under plaintiffs', execution. Pool v. Glover, 2 Ired. Rep. 129, and it could not therefore be deemed to have been satisfied by them.

As the plaintiffs have not appealed from the order directing satisfaction to the amount of two hundred dollars to be entered on their judgment, we cannot, and do not decide, whether the order was rightfully made or not. The judgment from which the defendants appealed, was, as we have shown, proper and must be affirmed.

PER CURIAM, Judgment affirmed.