McKay v. . Smitherman
Supreme Court of North Carolina
' Motion to set aside an execution returnable to that Term of the court, made before Buxton, J., at Pall Term, 1889, of MONTGOMERY Court. Judgment in the case had been rendered at EaU Term, 1-862. A fieri facias was issued, and was returned, levied on land, to Pall Term, 1863. A venditioni exponas (with fi. fa. clause) issued returnable to Pall Term 1864, directing on its face the receipt by the Sheriff of “cash in bank bills of this State, or specie.”
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' Motion to set aside an execution returnable to that Term of the court, made before Buxton, J., at Pall Term, 1889, of MONTGOMERY Court. Judgment in the case had been rendered at EaU Term, 1-862. A fieri facias was issued, and was returned, levied on land, to Pall Term, 1863. A venditioni exponas (with fi. fa. clause) issued returnable to Pall Term 1864, directing on its face the receipt by the Sheriff of “cash in bank bills of this State, or specie.” There was also a memorandum on the execution docket, entered by the Clerk at the time he issued the execution, in these words : “Issue vencM.,…
1Opinion of the CourtDick, J.
An execution can be satisfied only by payment, or by a seizure and sale of a defendant’s property.
In. 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 ? •
On the face of the execution there were instructions to the Sheriff, to receive in payment “ cash in bank bills of this State, or specie.” The plaintiff in the execution, had a right to give these instructions, Atkin v. Mooney, Phil. 31—and they were mandatory to the Sheriff. The law recognizes nothing in…
2Cited by1 opinion
- Utley v. . YoungSupreme Court of North Carolina · 1873