The opinion of the Court was delivered by
McIver, A. J.This was an action on a Sheriff’s official bond. The breach assigned was that the Sheriff, on 17th of July, 1863, had collected thirty-one hundred and sixteen 31-100 dollars under an execution in favor of B. F. Cleveland vs. Samuel Flemming, which was lodged in his office on 13th November, 1861, and had refused to pay over the same. The facts were that the Sheriff did receive the amount stated, at the time stated, in Confederate treasury notes, in full satisfaction of the execution, and reported promptly the receipt of the Confederate currency to the plaintiff in the execution, who refused to receive the same in satisfaction of his judgment. There was no endorsement of any stay upon the execution, nor were there any instructions given to the Sheriff not to receive Confederate currency, nor did the Sheriff confer with the plaintiff or his attorneys as to the propriety of receiving such currency.
*4Upon this state of facts a motion for a nonsuit was made and granted upon the ground that “ the receipt of the Confederate money by the Sheriff was a nullity and in no wise changed the relation of the plaintiff, Cleveland, and the defendant, Flemming, existing before the payment of Confederate money, nor diminished the liability of Flemming to Cleveland.”
This motion is now made to set aside the judgment of nonsuit and for a new trial.
While it may be true that a creditor has a right to demand and coerce payment in gold or silver in those cases not affected by the Act of Congress prescribing what shall be legal tender, it is none the less true that a debtor may, in the absence of any objection, liquidate his debt by payment of that which, while it may not possess the legal attributes of money, is yet, by common consent, so regarded and treated in ordinary business affairs. Hence it has been held that where bank notes are the ordinary currency of the country, a sale by a Sheriff under execution, at which he refused to take bank notes and required specie, without giving notice in the advertisement of sale that specie would be required, whereby the property was sold for less than its real value, would be set aside.— Farr vs. Sims, Rich. Eq. Ca., 122.
In that case O’Neall, J., in delivering the opinion of the Court, uses this language: “The usual terms of Sheriff’s saleare cash. The term cash has two meanings — one a payment in current bills, the other in specie. The first is the popular, the latter the legal meaning. The former has, in common parlance, entirely supplanted the latter.” The reasoning in this case, as well as in that of Rice vs. McClintock, (Dud., 354,) well warrants the conclusion that, in the absence of specific directions to the contrary, a Sheriff would be authorized to receive in payment of an execution lodged with him for collection bank notes which constitute the currency of the country at the time and place they are so received. This seems to be the rule not only here but elsewhere.
In the United States Bank vs. Bank of Georgia, (10 Wheat., 333,) Story, J., says: “Bank notes constitute a part of the common currency of the country and ordinarily pass as money. When they are received as payment the receipt is always given for them as money. They are a good tender as money, unless especially objected to, and, as Lord Mansfield observed in M1iller vs. Race, (1 Burr., 457,) they are not, like bills of exchange, considered as *5mere securities or documents for debts.” Nor do we think that this doctrine is to be qualified as contended for in the argument: that it is true only where such bank notes are redeemable in specie on presentation at the counter of the bank which issued them, because, besides the fact that the case of Rice vs. McClintock arose during the suspension of specie payments by the banks of this State, consequent upon the panic of 1887, in which no such qualification is even hinted at, such a qualification would so narrow the doctrine as to deprive it of all practical efficiency. For if it is only to be applied when bank notes and specie stand upon exactly the same footing, and the former is readily convertible into the latter, it is difficult to conceive of a case in which the doctrine would be of any practical use. The true foundation for the doctrine is the implied consent of the creditor. For when bank or other notes constitute the only currency, and is in universal use as such, while Courts will still recognize the constitutional right of the creditor, when asserted at the proper time, to demand payment of his debt in that which is established by law as a legal tender, they will, in the absence of any such assertion, conclude that he assented to or authorized payment to be made in that currency which every one regarded and used as money. Applying this doctrine to this case, there would seem to be no doubt but that the Sheriff, in the absence of instructions to the contrary, was justified in receiving in payment of the execution Confederate treasury notes, which then constituted the only currency in use, and was recognized not only by individuals but by the government in all of its departments as the only standard of values, and had in every practical aspect 'all the attributes of money, except where its use or employment as such was distinctly objected.
The principles established by this Court in the case of Pickens vs. Dwight (4 S. C., 360,) apply with great force to the case now in hand, In that case the effort was to hold defendant liable for receiving payment in Confederate currency of a bond which was in his hands as Master in Equity under the following circumstances: Dwight contracted for the purchase of a plantation, in 1858, for the sum of five thousand dollars; but it being necessary to apply to the Court of Equity for the purpose of procuring good titles, the transaction was not perfected until the 4th June, 1861, when Dwight executed his four bonds, secured by a mortgage of the premises, to the Master for three thousand dollars, the balance of the purchase money, he *6having on that day, and previously, made payments amounting to two thousand dollars. On the 29th April, 1868, Dwight paid the bond remaining in the hands of the Master to that officer in Confederate currency, the other three bonds having been otherwise disposed of. The Court declined to hold the Master liable, and in their decision, after repudiating the idea that Tupper was a trustee, they use this language: “A Master in Equity, in regard to the bonds committed to his charge, is the ministerial officer of the Court, the custodian of the treasury, holding it under its supervision. * * He does not hold the money as a trust, in the technical sense of the word, but is the financial agent of the Court; and where he has received it on a sale, under proper authority, he stands in no different relation to it than a Sheriff or a Referee who has made it under proceedings in a Court of law. * * * The Master was the officer of a Court in a State which satisfied all its obligations and engagements with Confederate currency, and accepted it in payment of debts due to it, without question as to the time when they were contracted. * * * The notes accepted by Mr. Tupper, ‘ were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency imposed upon the community by irresistible force by a government, obedience to whose authority in civil aod local matters was not only a necessity but a duty. They were the only measures of value which the people had, and their use was a matter of almost absolute necessity.’ — Thorington vs. Smith, 8 Wall., 11. Should the Master, the mere officer of the Court, be held liable for doing that which had the implied sanction of the Court in its own mode of dealing with such notes? Was not the recognition of the currency, by receiving it at par value, on the sale of even the estates of minors, a sanction for the act of the Master in the case before us? * * * The Court, of which he was the officer, had prescribed the course which, under the like circumstances, he should adopt, by commending it through its own example.” All this applies with equal force to the conduct of the Sheriff in receiving Confederate currency in payment of this execution, in the absence of any instructions to the contrary from those who owned or controlled the execution.
As to the ground taken in the argument that the Sheriff was liable because he neglected to enforce the execution immediately after its lodgment, “when the bills and notes constituting the circulating medium of the country were current at their par value,” it is suffi-*7eient to say that no such breach of the bond is alleged, the only breach assigued being the collection of the money and the refusal to pay it over. If such breach had been alleged and the Sheriff thus notified that this was a ground of complaint against him, it may be, for aught that the Court can know, that he may have been able to show that such delay was authorized by the plaintiff or his attorneys or in some other way have successfully met the. charge. We may add, however, that as the execution was not lodged until 13th of November, 1861, he had but barely one sale day, if indeed that, in which he could levy and sell before the passage of the Act commonly called the Stay Law; and though that Act, having been decided to be unconstitutional, null and void, cannot be regarded as ever having had any legal force or effect, yet, in questions involving good faith or laches, it may, perhaps, be worthy of consideration that such a law was not only spread upon the statute book but was universally acquiesced in and treated as of binding force until the question of its constitutionality was raised, in 1866, in the case of the State vs. Carew.
The defendants may, however, still be liable for the value of the Confederate currency at the time it was received, but of that we are not now prepared to judge, as the facts are not all before us.
The judgment of the Circuit Court is, therefore, set aside and a new trial ordered.
Motion granted.
Willard, C. J., and Haskell, A. J., concurred.