{
  "id": 8681097,
  "name": "ALEXANDER McKAY v. NOAH SMITHERMAN",
  "name_abbreviation": "McKay v. Smitherman",
  "decision_date": "1870-01",
  "docket_number": "",
  "first_page": "47",
  "last_page": "50",
  "citations": [
    {
      "type": "official",
      "cite": "64 N.C. 47"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 287,
    "char_count": 5229,
    "ocr_confidence": 0.35,
    "sha256": "7aa207e09973a1f10c1958626c8b278f4453484b7d9546eb1ab630bd87264fb2",
    "simhash": "1:74c201a361ab2c5b",
    "word_count": 904
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  "last_updated": "2023-07-14T17:28:35.890237+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ALEXANDER McKAY v. NOAH SMITHERMAN."
    ],
    "opinions": [
      {
        "text": "Dick, J.\nAn execution can be satisfied only by payment, or by a seizure and sale of a defendant\u2019s property.\nIn. the ease before us there was no seizure and sale of property, and the question to be determined is, Did the payment, by McKay, of Confederate notes to the Sheriff, discharge the execution ? \u2022\nOn the face of the execution there were instructions to the Sheriff, to receive in payment \u201c cash in bank bills of this State, or specie.\u201d The plaintiff in the execution, had a right to give these instructions, Atkin v. Mooney, Phil. 31\u2014and they were mandatory to the Sheriff. The law recognizes nothing in the payment of debts but money; i. e., coin or currency which is declared to be a legal tender. If any other kind of currency is received by a Sheriff in payment of an execution, with the express or implied consent of a plaintiff, it will discharge the debt. In our case the Sheriff was acting under special instructions, and his failure in the performance of his duty rendered his action illegal and void.\nThe execution was not returned \u201c satisfied,\u201d and the special return of payment in \u201cConfederate currency notes,\u201d did not discharge the judgment. Taylor v. Kelly, 6 Jon., 324; Griffin v. Thompson, 2 How. U. S. 244.\nThere is no error.\nPee Cubiam. Judgment affirmed.",
        "type": "majority",
        "author": "Dick, J."
      }
    ],
    "attorneys": [
      "Ashe, and Battle & Sons, for the appellant.",
      "No counsel, contra."
    ],
    "corrections": "",
    "head_matter": "ALEXANDER McKAY v. NOAH SMITHERMAN.\nA Sheriff who had been instructed by the plaintiff to receive upon an execution \u201ccash in bant bills of the State, or specie,\u201d received upon it its amount in Confederate currency, and endorsed \u201csatisfiedupon returning it to the Clerk his attention was drawn to the instructions upon the writ, and thereupon he withdrew it, erased \u201csatisfied,\u201d and entered \u201cReceived, August 30th, 1864, the amount of this execution in Confederate currency notes, which plaintiff refused to accept':\u201d HeM, that the judgment was not discharged ; and therefore, that the defendant had no right at a subsequent term to move that alias writs of execution which had been issued, should be set aside.\nAn execution can be satisfied only by a seizure and sale of property; or by payment in coin, or in such currency as the plaintiff give's the officer express or implied authority to receive.\n(Atkin v. Mooney, Phil. 31, and Taylor v. Kelly, 6 Jon. 324, cited and approved.)\n' Motion to set aside an execution returnable to that Term of the court, made before Buxton, J., at Pall Term, 1889, of MONTGOMERY Court.\nJudgment in the case had been rendered at EaU Term, 1-862.\nA fieri facias was issued, and was returned, levied on land, to Pall Term, 1863.\nA venditioni exponas (with fi. fa. clause) issued returnable to Pall Term 1864, directing on its face the receipt by the Sheriff of \u201ccash in bank bills of this State, or specie.\u201d There was also a memorandum on the execution docket, entered by the Clerk at the time he issued the execution, in these words : \u201cIssue vencM., to be collected in bank bills or specie, issued 19th July 1864.\u201d\nThe Sheriff who had made the levy, on the 30th August 1864 received the amount without sale, of Alexander McKay, one of the defendants in the execution, but received it in Confederate currency, endorsed the execution \u201csatisfied,\u201d brought it into the Clerk\u2019s office, and laid it on the table, remarking that he had collected the money. Thereupon the Clerk made an entry on the execution docket, of the word \u201csatisfied,\u201d but on looking at the money, and discovering its character, said to the Sheriff \u201cThat will not do,\u201d erased the word \u201csatisfied\u201d which he had just entered, refused to receive the money, and pointed the Sheriff to the direction in the execution, and on the docket, as to the character of the money required.\u201d\nThe Sheriff then carried off the execution, and the Confederate money.\nThis execution afterwards was filed among the papers, no one knows how. The word \u201csatisfied,\u201d first endorsed thereon and signed by Sheriff Sanders, was erased, and the following words appeared:\nReceived, August 30th 1864, the amount of this execution in Confederate currency notes which plaintiff refused to receive. A. H. SANDERS, Sh\u2019ff.\nThe Sheriff at the time he collected the Confederate money of McKay, gave him no receipt, but remarked to him that he would write the word \u201csatisfied\u201d on the writ of execution. He afterwards informed McKay that the money was rejected, and tendered it back to him,-but not until it was entirely worthless, and then McKay refused to take it back, and the Sheriff has it yet.\nSanders went out of office in October 1864. No further proceedings were had upon the levy already made, but successive writs of fieri facias were issued from court to court, and came into the hands of his successor in office, under one of which a new levy was made upon the land of the said McKay. Upon this levy a ven. ex. (with fi. far clause) issued, returnable to the present term of the court, and this execution Alexander McKay moved to set aside, upon the ground that so far as he was concerned, the judgment upon which it issued was satisfied and discharged, by the proceedings in regard to the execution in the hands of Sheriff Sanders, above recited. His Honor refused to set aside the execution, and McKay appealed.\nAshe, and Battle & Sons, for the appellant.\nNo counsel, contra."
  },
  "file_name": "0047-01",
  "first_page_order": 71,
  "last_page_order": 74
}