#### Ringgold et al. vs. Edwards.

Assumpsit: the declaration, setting out the. full names of defendants, alleged that they executed the note sued on by the style and description of “Steam Boat Stubenville & ownerspleas of non-assumpsit and payment: issues to the pleas — Held that defendants, by their pleadings, admitted themselves to be the owners of the boat, and could not controvert that fact on the trial by objecting to the introduction as evidence of a note corresponding with the one described in the declaration in other respects, and signed “Steam Boat Stubenville & owners” — that if they desired to controvert the fact that they were the owners of the boat they should have done so by a proper plea pleaded in apt time &c.

Assumpsit on a note : judgment by default against defendants; execution issued, and returned by the sheriff “satisfied by defendants, and paid in Arkansas paper.” Judgment afterwards reversed, on eiror, cause remanded, and defendants pleaded payment — Held that the payment to the sheriff was valid, and a bar to the action.

field further, that il the Arkansas paper was depreciated, the sheriff took it at his *87peril, and if he received it without authority from the plaintiff it was no concern of defendants; that it was sufficient for them that the officer returned the execution satisfied.

Writ of Error to the Circuit Court of Pulaski County.

This wits' an action of assumpsit, commenced in the Pulaski circuit court to the September term, 1840.

The declaration contained two counts, the first on a promissory note, the second for work and labor. The first count was in substance as follows:

John Edwards complains of James B. Palmer, John Ringgold,-Andrew J. McFarland, Thomas T. Tunstall, and Elisha W. Owens, owners of the Steam-boat Stubenville of a plea of trespass on the' ease upon promises.

For that whereas the said defendants by the style and description of S. Bt. Stubenville & owners, heretofore, to-wit: on the 23d June 1840, at &c., by one George G. Adams clerk, their then agent in that behalf, made their certain promissory note in writing, signed' by the style and description of S. Bt. Stubenville and owners per' George G. Adams clerk, and delivered the said promissory note,' bearing date the day and year aforesaid, to said plaintiff, and thereby then and there, for value received promised to pay to plaintiff, or order, the sum of $137 50, one day after date, with lawful interest until paid. By means whereof,” &c. &c. — then followed the usual-allegations of the liability of defendants, their promise to pay, and breach.

At the return term the cause was discontinued as to Tunstall1 and Owens, and judgment by default against the other defendants-without service of the writ upon McFarland,- for which error de^-fendants brought the case to this court, and reversed the judgment,' by which McFarland made himself a party.

The cause was remanded,- and determined again before the Hon,John J. Ceendenin, Judge, at the May term 1844.

The defendant Palmer filed lour separate pleas, one ofnon-assump»-sit, and three of bankruptcy.

Ringgold filed two separate pleas, one non-assumpsit, the other' *88payment after commencement of the suit. McFarland made default. Issue was taken to all the pleas, the cause submitted to the court sitting as a jury, and the court found for Palmer, and against Ringgold, and rendered judgment against McFarland and Ringgold.

Ringgold moved for a new trial, which the court refused, and he took a bill of exceptions setting out the evidence, from which it appears that on the trial of the cause the plaintiff offered in evidence an instrument of which the following is a copy:

“ Little Rock, Arks., June 23d, 1840.

For value rec’d we promise to pay John Edwards, or order, the sum of one hundred and thirty-seven dollars and fifty-cents,- one day after date, with lawful interest until paid.

S.- Bt. Stubenville & owners per Geo. G. Adams, clerk.”

To the admission of which as evidence, Ringgold objected, but the court permitted it read, and it was all the evidence offered by the plaintiff. The testimony introduced by Ringgold to sustain his plea of payment is sufficiently stated in the opinion of this court. Ringgold and McFarland brought error.

Fowi/ek, for the plaintiffs.

The note should not have- been ad‘ mitted in evidence, because it varies from the one described in the declaration, both as to the place where and the persons by whom it was made, in matter of description. And even a trivial variation in setting out a contract is fatal, because it does not appear to be the same given in evidence, 1 Ch. PL 304. 4 Ark. R. 42 L, The Bank of the State vs. Hubbard.

The final judgment rendered in favor of Palmer,-their co-defendant below, was without one particle of evidence; and to the prejudice of Ringgold and McFarland, who if bound to pay the note, have a legal right to contribution from Palmer for his part of the amount. And without evidence to sustain Palmer’s plea of bankruptcy, the court was bound to render a judgment against him as well as Ringgold and McFarland, or in favor of all of them against Edwards. A judgment could not be thus divided. The evidence of payment to the sheriff offered by Ringgold was sufficient *89to sustain the plea, and the court ought to have rendered judgment thereon. Payment to a sheriff is a good payment, because he has authority to levy the debt, see 1 Sellon’s Practice 525. 2 Lev. 203.' 5 Mod. 296. Cro. Eliz. 504. Noy 56. Dalt 525.

The sheriff’s return of the satisfaction is conclusive between the parties, 3 Marsh. Rep. 393. Smith vs. Hoback, 1 Littel’s Rep. 17. Small vs. Hodgen, 3 Litt. R. 467. Gray vs.- Gray, 4 Monroe 499. 3 Monroe 351. Caldwell vs. Harlan; 3 Litt. R. 329. Trigg &c. vs; Lewis Ex’r., 4 Litt. R. 246, etseq. McGhee vs. Ellis & Browning;

There was one count in the declaration not “ founded on any instrument of writing,” and the court notwithstanding entered el default against McFarland, assessed the damages and rendered final-judgment against him on the entire declaration, without calling a jury to assess the damages, which was in direct violation of law,- and for that reason the judgment must necessarily be reversed,- see Rev. Slat; p. 630, sec’s 80,81.

Ringo & Trapnall, contra,

cited 3 Smeedes & Marshal, 234; 2 Howard 244, and 5 'Wend. 624, to show that the receipt by the sheriff of depreciated paper was no satisfaction of the judgment.And 4 Wend. 101, to show that the payment of a judgment could not be set up under a plea of payment after judgment reversed,-to a suit depending on the original cause of action. These authorities* however, were cited in a petition for reconsideration, which was overruled.-

Johnson, C. J.-

The plaintiffs in error contend that the court below erred: first, in permitting the instrument sued upon to be read in evidence ; and secondly, in refusing to grant a new trial; The only variance between the instrument’ as described in the declaration, and the one offered in evidence consists in the addition of the proper names of the parties charged to have executed it. The declaration sets out the full names of the owners of the boat, and avers that they made the contract under the name and style of the Steam Boat Stubenville and owners. Thé plaintiffs did not elect to deny the ownership by an appropriate plea, but on the con*90trary virtually admitted the fact as charged by pleading to the merits-' of the action. If they were not the owners of the boat and desired-to controvert the fact, they should have put the matter in issue in apt time, but having failed to do so,- it is now too late to raise the objection. There was no error therefore in admitting the writing in evidence. ' ■

The second, objection is that the finding is contrary'to evidence.This involves the question of the applicability of the testimony to the defence set up. It- was proved upon the trial that the defendant' obtained a judgment against the plaintiffs in the same case on the' I7th November 1840, for one hundred and forty dollars and seventy-six cents damages and costs, upon which an execution was issued to1 the sheriff of Independence county, dated April 7th 1841,. returnable to and on the seventh day of September 1841, and which execution was returned by the sheriff “ satisfied by Ringgold and Palmer, and paid in Arkansas paper.-”. It was also in evidence that at the July term A. D. 1842 of the supreme court, said judgment was-reversed, annulled and set aside, and the case remanded to the Pu--laski-circuit court to be proceeded in according todaw. The point now to be settled is whether a payment to the sheriff, who was armed at the time with an execution, was a valid payment, as the judgment, upon which said execution was based, was subsequently reversed, and set aside by the supreme court. We are clearly of the opinion that the payment was valid and consequently a com--píete bar to the action on its return to the circuit court. The1 judgment upon which the execution was founded, was in full force-at the time of the payment, and' the execution issued thereupon-clothed the officer with full and complete authority to collect and1 receipt for the amount specified upon its face. It may be urged that the payment was no bar because it is said to have been ihade in Arkansas paper. The answer to this is, that the officer received it at his peril, and if he did so without the authority of the plaintiff in the execution, it is a matter in which the plaintiffs in error-have no concern. It is sufficient for their purposes'that he endorsed the execution satisfied. We think it clear therefore that the evidence fully supported the plea of payment,-and that therefore the finding-*91should have been in favor of the plaintiffs in error. The judgment of the circuit court must therefore be reversed.