This is an action on a judgment rendered in Washington County Court in November, 1841, against the defendant and one Fagan for $137.81, and the pleas are payment and satisfaction. The evidence was that in September or October, 1842, one Davis, then sheriff of the county, applied to Fagan for a loan of $500, and that Fagan replied that he had no money of his own, but handed him that sum and took his receipt and note therefor, telling Davis at the same time that he wished it applied to executions against him. Afterwards the sheriff received executions against Fagan, and amongst them was a fieri facias on the judgment of Tarkinton against Fagan and Guyther; and he also received others against Guyther alone, and on 16 November following, a deputy sheriff applied to Fagan for payment of those to which he was a party, and Fagan delivered to him the note or receipt of Davis and requested him thereout to satisfy the execution of Tarkinton, and the deputy agreed to do so, and entered satisfaction thereon. Afterwards the deputy applied also to Guyther for payment of the executions (101) against him, but he was unable to raise the money, and an arrangement was then made between Fagan, Guyther, and the deputy sheriff that the said sum of $150 should be then applied to the execution against Guyther alone instead of Tarkinton against him and Fagan, and that when Tarkinton should want his money raised Guyther should pay the whole of it; and in conformity thereto the deputy sheriff, by the directions of Guyther, struck out the entry of "satisfaction" on the plaintiff's execution against Fagan and Guyther and applied the same amount to the discharge of the executions against Guyther alone. The court instructed the jury that the evidence did not support the issues on the part of the defendant, and the plaintiff had a verdict and judgment, from which defendant appealed. The judgment must be affirmed. It is admitted that directions at the time of payment, to apply it in satisfaction of a particular execution, would, while things remained in that state, beprima facie a discharge of the execution, and make it wrongful in the sheriff to proceed further on it. And it need not be denied that if an execution be against two, and one of them pay money on it, he and the sheriff cannot afterwards, though before the return, change the application to the prejudice of the other defendant. For, however that may be, it cannot affect this controversy, because both of the debtors — the present defendant and Fagan — gave directions to the sheriff to apply the money to an execution against this defendant alone, and, consequently, not to return plaintiff's execution satisfied. It is the same, then, as if (102) the execution had been against a single person, who after paying the sheriff a sum of money with an intention to discharge it, received the same back or had it applied to another demand against him in the hands of the sheriff. The creditor, indeed, might insist that the sheriff should hold the money, once in his hands, for him, and he might look to the sheriff for it. But as between the debtor and creditor, the latter is not bound to do so, for as the debtor got his money back or had the use of it in another manner before it was conclusively applied, by being actually paid to the creditor or by the sheriff's return of the fierifacias, the creditor ought to have his election to raise it from the debtor. The case is much the same as if a sheriff seize goods to the value of the debt, and the debtor got them before a sale; and that is certainly not a satisfaction. The officer's memorandum on the writ of the levy or of satisfaction can make no difference in either case, because it is not a return until he makes it to the court, and in the meanwhile it is in his power, and, indeed, it is his duty, to alter it as the truth may require. It would be a reproach to the law if judgments and executions could be thwarted by a trick like this, which is too much against morals not to be also against law.
PER CURIAM. Affirmed.
(103)