#### Holloway James, *vs.*John Mayrant.

*Jin attachment was issued against defendant, to compel the payment of the balance of a decree in equity. He delivered to the sheriff cotton, who sent it to a factor to be sold and the pro-, ceeds remitted to him. The mo-ney was received, by the sheriff after the attachment was returnable. On a rule against defendant to shew cause why the attachment should not be renewed, he made oath that he was directed by complainant's*solicitor, *who was now dead, to pay to the sheriff. This, with the facts stated, was held sufficient evidence of the sheriff’s authority to receive.*

The debt in this case was contracted before 1808, and a decree that it should be paid out of the trust estate of Mrs. Isabella Mayrant, was made by the appeal court in 1815. This, decree directed the trustee, William Mayrant, and the agent,' *181-John Mayrant, to account before the commissioner, and pay out of the proceeds of the estate, the debts, the interest and costs. Some payments were made in 1815, leaving a balance due.

No further payments having been made on the said decree, an attachment for contempt was taken out against John and William Mayrant, returnable to the fourth Monday in June, Í820, the day in that year on which the court of equity commenced its term in Camden.

This attachment was lodged with *Hodges,*acting deputy of Wiggins, sheriff of ICcrshaw district. On the 29th April, 1820, Hodges wrote a letter to North 8s Webb, factors in Charleston, stating that be had shipped four bales sea island cotton, marked W. H. M. to be sold by them; the proceeds to be remitted to him, Hodges, as the cotton was placed in his bands as sheriff. The cotton was received at Charleston, 9th of June, 1820, and the proceeds of the sale remitted to Hodges by mail, 10th July, 1820. The nett proceeds of the cotton was $232 83 cents. No part of this sum, so remitted to Hodges, was ever paid o\cr by him to complainant, or his solicitor. Hodges and Wiggins were dead; their estates wholly insolvent. Sylliman, the counsel on record for complainant, was also dead..

John Mayrant being ruled to shew cause why the former -attachment should not be renewed, appeared anehmade an affidavit. upon which the -court ordered a reference to ascertain whether Mayrant was authorised to pay to Hodges.

The commissioner repotted that Mayrant had offered no other evidence of such authority than his own affidavit; in which be states he was directed by Sylliman, the solicitor of complainant, to pay the balance due to Hodges.

Chancellor *James.*

The commissioner reported in this case that complainant obtained a decree against defendant for *‡886*99; that the whole of said decree, except $232 9G, is satisfied, and that said sum was paid to Alexander Hodges, deputy sheriff of Kershaw district, on the 10th July, 1820, by-Messrs. North & Webb, of Charleston, on account of defendant. But there was no evidence other than tjje affidavit of defendant, that Hodges was authorised to receive the said sum. *182It is admitted that an attachment was issued, returnable June term, 1820. There is no- dispute as to the payment to Hodges,. and it is admitted that he was deputy sheriff at the time. The only question is as to his authority to receive the money. Ho-is dead and insolvent, and complainant seeks to make defendant repay the money. Alexander Silliman, the solicitor of complainant on record, is also dead. Under these circumstances* two years after *the*payment," defendant is called upon to account, and he makes an affidavit that Silliman directed him to-pay to Hodges. In such a case, I consider the affidavit of defendant, not as to the payment, hat as to a collateral matter, *the authority to-receive]*in the light of an answer; which is corroborated by the letter of Hodges to North & Webb, wherein, lie states that th,e cotton was placed in his hands as sheriff. This is conclusive, and complainant's motion must be overruled with costs.

The complainant appealed on the grounds,,

1st. Because the sheriff in whose hands an attachment is-lodged, against one for failing to account, is not at liberty to receive the money instead of executing the writ:

2nd. Because the sheriff if he receives such money, is the-agent of the defendant who pays, and not *of him*in whose favor the attachment 'issues;

3rd. That the sheriff was not authorised to receive produce or any thing but money, instead of the body of the defendant; nor to receive money, after the day on which the attachment is returnable:

4th- That the affidavit of defendant, even in connection;, with the letter of the deputy sheriff, was no evidence to shew the seriiPs authority to receive.

Holmes-for appellant.

The attachment against the defendant, as appears from the order of the court, was for failing to account, and'the contempt could not be purged by paying the money. This; is not analogous to the instance of aca,-sa.; but if it were so, the sheriff is not at liberty to receive the money and discharge the debtor. ' 1 *Sellon,*522. It is not a-good return to a ca». sa, that the sheriff J>as made the money,, *183The atiachment is to enforce the performance of a decree: If money is to be paid, the defendant must pay it immediately, and give security to perform the rest of the decree, in order to entitle himself to his discharge. 2 *Har. Ch.*175. Certainly however, the sheriff was not authorised to receive cotton, nor does the defendant’s affidavit State that he was to deliver cotton. The money was not received by Hodges till after the attachment was returnable; when the attachment was at an end, and could give no further authority. Hodges could only he con-sideredthe agent of defendant, for the purpose of selling the cotton and applying the proceeds. 9 *Johns.*Rep. 263.

*Chancellor James*

*delivered the opinion of the Court.*

I have reconsidered the decree given by me in the circuit court in this case, and am decidedly of opinion that the same is correct. It is admitted that an attachment issued against the defendant, returnable to June term, 1820, which is lost. Now on the 29th April, 1820, the deputy sheriff, Hodges, writes to North and Webb,-factors, that he had shipped four bales of ¿eaisland cotton,marked W. II. M. tobe sold, and the proceeds remitted to him • m Camden, *as sheriff of the district,*ft has never been disputed that these were the four bales of cotton, of the trust estate which Hodges received from May rant,, which were aftewards sold, and the proceeds, $232 96, were remitted to Hodges on the 10th July, 1820. The object of. the attachment was, to compel payment, and not merely to in-, carcerate defendant’s body, and that object could foe effected, by levying upon or receiving defendant’s property. The levy was made before the writ was returnable, and kept it alive until', payment; besides, as stated in the decree of the circuit court;, IVlayrant being called upon by rule to account on oath, and, having accounted that the said sum was paid to Hodges, *as deputy sheriff,*his affidavit must be taken as an answer *as to Hodges’ agency,*and Hodges’ letter confirms it, while , the evi~ ¿fence, or the account of North and Webb received as such, proves the payment of the said sum of money.

I cannot see under these circumstances, why Mayrant should pay the money a second time. Therefore the decree of *184the circule court is affirmed.

*.Holmes,*for appellant.

*S. D. Miller,*for respondent'.

Chancellors *Gaillttrd, JDesaussurt:*and *Thompson*concurred.