#### ELLIS SHOEMAKER vs. E. M. HALE.

A. confessed before a Justice of the Peace a judgment to B. for $40, and afterwards paid a part of the judgment, which was to be credited thereon by B. The credit was not enteicd, but B. subsequently caused a levy to be made on the land of A., which was returned to the County Court, and order of sale made, under which the land was sold for the whole amount of the judgment. Before this sale, A. brought an action against B. to recover the sum paid, and which B. ought to have endorsed on the judgment.:— It seems, that A., having had a day in Court, when he might have shown the payment, and having failed to do so, is without remedy; but however this may be, this action was brought prematurely, for his cause of action did not accrue until the sale.

This was a suit commenced by attachment before a Justice of the Peace, in which the plaintiff declared, 1, for money had and, received to the use of the plaintiff, and 2,. for money paid at the request of the defendant. The defendant appeared, and the case was carried by successive appeals to the County and Superior Courts of Macon county, where upon the plea of the getieral issue, at Spring Term, 1853, it was tried before his Honor, Judge Ellis.

The case was, the plaintiff being indebted to the defendant on a note, in the sum of forty dollars, confessed a judgment therefor ; and one Beattie being indebted to the plaintiff, paid the defendant, at his request, a sum of money, with the understanding that it should be paid and credited on said judgment against the plaintiff — who was however ignorant of such payment at the time. It further appeared that, the defendant owed one Marsh-burn a sum of money, and by his directions and request the plaintiff instructed said Beattie to pay it for him, and it was paid accordingly.

The said Justice’s judgment was given in evidence, and it ap*412peared that the sum paid by Beattie had not been credited, but that the whole judgment had been collected by a sale of the plaintiff’s land. The levy upon the plaintiff’s land was made on the 4th of December ; and a judgment was entered up in the County Court, and the order of sale obtained on the 9th of December, 1850. And this action was commenced the 3d day of December, 1850.

It was insisted'for the defendant that the plaintiff could not recover : 1, Because the money was received by the defendant as a payment on the judgment he held against the plaintiff, and by the act of receiving it for this purpose, it became his own money, and that the plaintiff had his day in Court, when this payment could have been shown by him ; 2, because there was no sufficient privity between the parties, inasmuch as Beattie made the payment without the knowledge or consent of the plaintiff, and it was due to him if to any one. But his Honor being of opinion that the plaintiff having ¿dopted the act which Beattie undertook to perform for him in making the payment, could sustain the action, and so instructed the jury. He further instructed them, that if the defendant failed to apply the sums paid him to the judgment against the plaintiff, and proceeded to collect the whole amount of said judgment, the plaintiff would have a right to recover the sum so paid ; and that this suit was not instituted before the cause of action accrued.

There was a verdict for the plaintiff, and from the judgment thereon rendered, the defendant appealed to the.Supreme Court.

J. Baxter, for the defendant.

J. W. Woodfin, contra.

Nash, C. J.

The plaintiff has brought his action prematurely. Without entering into the question, whether under the cir-' cumstances, an action could be maintained by him against the defendant, we are Of Opinion that at the time this suit Was brought, there Was no cause Of action. The case is simply this : The plaintiff owed the defendant a sum of money amounting to forty dollars, for which hé confessed a judgment: upon this judgment he paid the plaintiff, by the hands of one Beattie and another person, the sum of twehty-four dollars or thereabouts ,• an execu* *413tion issued on the judgment to collect the whole sum mentioned in it, and was levied on the land of the plaintiff on the 4th day of December, 1850 ; and having been returned to the County Court succeeding, a judgment condemningtbe land was rendered on the 9th of December. This action was commenced on the 3rd of December. — one day before the levy.' On the sale of the land, the whole amount of the j udgment was collected. The payments were made after the judgment was rendered by the magistrate, and were to be credited on it, but were not. At the time, then, when the attachment issued, what cause of action had arisen to the' plaintiff? No time was specified within which the credits were to be entered by the defendant, and not until the sale of the land under the execution, and the collection of the whole amount specified in it, was there any breach of duty on the part of the defendant, or any over payment. If at the time of the sale, the defendant had instructed the Sheriff, as if was his duty to have done, that the judgment was subject to be credited with the amount of the payments, and he was to collect only the balance due, certainly no cause of action could have arisen against him. The levy could give no such action ; for after allowing the payments, there was still due to the defendant, upon the judgment, upwards of sixteen dollars, and for this amount he had a right to levy and sell. Not until the defendant caused a sale of the land, for the collection of the whole amount called for in the execution, could a cause of action arise to the plaintiff for the recovery of the amount paid by him. Again, a constable cannot sell land under a Justice’s execution. He may make a levy, but the levy with the papers must be returned to the County Court, and that tribunal will not give a judgment condemning the land, until after five days’ notice to the defendant in the judgment. This was no doubt done ; and the plaintiff might have appeared'and shown to the Court, that since the judgment was obtained before the magistrate, he had made the payments claimed by him. He had, therefore, his day in Court, and did not choose to avail himself of it, but commenced his action before even a levy was made,

Pek CuRiam. Judgment reversed, and a venire de novo awarded.