pronounced the opinion of the Court.— We find a singular state of pleadings in this case. The plea, which begins in some measure like a plea in bar, proceeds more like the answer to a bill in chancery. It is a plea to the whole yet is so pleaded, that it could never be met by any one replication, .that could end in a single issue,. The matter of this defence *114should have been presented in a form wholly different'. For instance, as to thirty-five dollars,-a part of said judgement, the plaintiff ought no.tto have his executionrbecause he, the defendant, Pa'd that sum to the plaintiff, &c., and as to the remainder- of said judgement, proceed in like manner to’show payment. And, if the defendant wished to present this last in several shapes, as would seem probable by his present plea, he might plead by leave of Court, as many as the facts relied upon would require, to save the rights of the defendant. There must be distinct pleas, and capable of being traversed, or met by a single replication — and all conclude with a verification, just as the pleas to any other action.
To the pleas filed in this case the plaintiff has replied, and, to his replications the defendant has rejoined. And issues were joined to the jury, at the termination of each branch- of the pleadings. The verdict of the jury for- the-plaintiff^ upon all these issues; Mas-disposed'of every thing, except- the two questions named in the case, which indeed are but the same ques-tion,-raised. indifferent forms;
The defendant’s motion for a judgement, notwithstanding a verdict against him,-is grounded upon the supposition that one of the issues was immaterial. On-examining this issue, we find its materiality depends wholly upon-the view the Court may entertain upon the correctness of the instructions-given to-the-j,ury>: for-that issue is nothing more nor less, than, whether the payment,, of which the defendant claims the benefit, was made by Barlow with his own money,-and not-as agent for the defendant; and this, when there is-no pretence that the defendant has ever-paid it, otherwise than through this payment by Barlow, or advancing by- Barlow, as the case states it. If the creditor’s-having received the amount of his-debt,-after the officer is rendered liable for it by his neglect on the execution,- necessarily- operates as- payment and satisfaction by the debtor, then the issue was immaterial. It was immaterial whether the payment was made by the sheriff, or by the defendant, with the sheriff’s money, or with the defendant’s money, by the sheriff, in discharge of his own liability, or as agent for the defendant. All these must alike be immaterial, if they alike enure for the benefit of the defendant, in payment and satisfaction of the debt. If so, the instructions were also incorrect; for they attach great importance to the same facts put in issue to the jury, and which the defendant now contends- are immaterial-.
*115The defendant’s counsel rely upon the cases'they cite from the 7th and 18th of Johnson's Reports, to -show, thaf a-sheriff, committing a neglect in the collection of an execution, •■can'have no after benefit from tfre'judgemenror execution,to reimbursehimself. It appears lo me I have sometime read the report of a decision in that state more in point for the defendant than these. Possibly I may have understood these to go further than appears on a careful perusal of them. These really 'go no farther than the common principle,considered tobe law here, and every where, That, if any, who stand in the place of the debtor, by signing with and for him, or becoming his bail, pay the debt, it is paid, and can be no more used as against the- debtor or any others oj his sureties. They must severally resort to their principal for remuneration, or to their cosureties for a contribution. In these cases cited, if I understand them correctly,the money was actually raised by the debtor himself, with the aid of the sheriff as indorser or surety. That, when paid .to the creditor, as fully extinguished the debt, as if some third person, instead of the sheriff, had been indorser or surety.
The plaintiff’s counsel cite cases from the 9th and 15th cff Mass. Reports, to show that the courts in -that state sustain actions in the name of the creditor for£hefbenefit of the sheriff, who had become liable on the execution, and had paid its amount to the creditor, and -taken his assignment of the debt. “Cases have been frequent in this state, where Sheriffs and their deputies, have paid over money, whenliable by reason of their neglect in collection, and taken a receipt from the creditor or his attorney, and suffered no indorsement upon the execution, and afterwards have collected, by the aid of suits in the name of the creditor; and I recollect no question ever raised upon such a procedure in-this state,-until in the defence of this action. We are unable to discover any difficulty, or injustice that could ever proceed from sustaining a suit for the benefit of the officer, who has become liable, and has advanced the money to the creditor, on taking his assignment of the debt. If execution is obtained in such suit, it must go into the hands of some officer, who is not interested, for collection. This will avoid a good share of the difficulties the Court were so cautious to avoid in those cases cited from Johnson’s Reports ; and we discover no more difficulty in the present case, than if Barlow had taken an assignment when he advanced the money. How does this case stand.? The money now sued for has never been paid by the defendant: but Barlow, the officer, advanced the *116amount to tbo plaintiff, and the plaintiff tells us of record, that he is prosecuting this suit for the benefit of Barlow. The officer neglecting, must never be permitted to speculate, becoming himself liable, and make payment; and then act as creditor and officer both. Probably, in most cases, where the officer becomes liable to the creditor, without actual collection of the money, it is owing to the humanity of the officer, and want of good faith and punctuality in the debtor. In such cases it would be hard to suffer the debtor to treat this indulgence of the officer as a crime, and debar him of all remedy. Still, the officer can never use the name of the creditor, to collect by suit, unless he first makes his peace with the creditor. But, when be uses the name of the creditor,, without any objection from him, to collect a debt from him who ought to pay it, there is no hardship in presuming that the creditor has made an assignment to the officer, who has an equitable claim to such assignment.
Smalley & Adams, for defendant. Hunt & Beardsley and Smith, for plaintiff.The defendant, in this case, has interposed no plea on which any question could arise, about the want of the authority to use the plaintiff’s name in recovering this balance. And, where it is averred,, in the replication, that Barlow advanced bis own money to the plaintiff, and that this suit is brought and prosecuted for the benefit of Barlow, to remunerate for his expenditure, we treat these as the assertions of the plaintiff, and these assertions of record. And they ought to be treated as an assignment, so far as relates to this suit. There is, therefore, no error in the judgement of the county court, either in their instructions to the jury, or in their overruling the defendant’s motion for judgement, notwithstanding the verdict- against him. Their
Judgement is affirmed.