Mitchell v. Hockett

By the Court, Sawyer, J. Plaintiff introduced, in evidence an execution in the case of Hockett et al. v. Mitchell, and the return of the Sheriff indorsed thereon in the words following: “ I return this execution satisfied by two notes of hand—one for ninety-one dollars and seventy-two cents, and the other, six hundred and fifty dollars, making in all seven hundred and forty-one dollars and seventy-two cents—and the above property is released. July 20, 1857.”

The object was to prove the satisfaction of the judgment— the main issue in the case. The defendants objected to the introduction of the return, on the ground that it was improper evidence to prove satisfaction of the judgment. The objection was overruled and defendants excepted.

If' this return contained any element entitled to be considered, which tended to prove satisfaction of the judgment, it was admissible. But we think it does not. The officer, by virtue of his office, had no authority to accept notes in satisfaction of the judgment, and no authority to certify any other-act than one performed in the proper exercise of his powers. The judgment creditor may, undoubtedly, by an express agreement, receive a promissory note in satisfaction of a judgment, or any other antecedent debt. But it must be by an express agreement. “ It is a rule well settled * * * that taking a note, either of a debtor or of a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to take the note in payment, and run the risk of its being paid; or unless the creditor parts with the note, or is guilty of laches in not presenting it for payment in due time. # * * It only postpones the time of payment of the old debt until a default be made in the payment of the note.” (Toby v. Barlow, 5 John. 68; Griffith v. Grogan, 12 Cal. 322.)

If there was any satisfaction of the judgment and execution, it was by an acceptance of the notes referred to in the return by the plaintiff in the execution, under a special agreement to take the paper as absolute payment; and it was necessary to [543]prove such acceptance and agreement by testimony other than the Sheriff’s certificate. The Sheriff’s certificate upon that point was no more entitled to be considered than the certificate of any other person. His return that it was satisfied in the particular manner specified, in effect amounts to nothing more, than a certificate that the plaintiff received the notes under a special agreement to accept them as an absolute payment and extinguishment of the debt, and in satisfaction of the judgment. The certificate being incompetent to prove these facts, it was error to admit it in evidence. As it was admitted, the jury must be presumed to have considered and given it weight in making up their verdict.