Rogers v. Walden

On Application por Rehearing. Wylt, J. It is unnecessary to grant a rehearing on the question of prescription, which escaped the attention of the court, because there is nothing in it to change our conclusions. The case, as made in the pleadings, is not an action for misfeasance or nonfeasance by the sheriff, to which the prescription of two years is applicable under the act of 1855, but it is for the recovery of money which the answer says was received by the sheriff and put in bank, and which funds he was unable to withdraw to liquidate said claim by military orders, etc. *476 The Confederate money defense was not pleaded; it is only set up in the brief, and all that the record shows in relation to it is the evidence of one witness, that at the period of the sale that illegal currency was in circulation. As it was insisted in the brief that the case is covered by the rule announced in Harvey, syndic, v. Walden et als., and as indeed the whole defense was placed upon that decision, we assumed for argument the fact that Confederate money was received, as asserted in the brief, and proceeded to show that the theory of that decision is not applicable to this case, because the facts are different. While a judgment creditor, requiring the sale of his debtor’s property at a time he knows it can not be effected by the sheriff except for Confederate money, is presumed to sanction the receipt thereof by Mm, an absent defendant, whose property ha's been attached and sold under a preliminary order of court, as in this case, is not presumed to authorize the sale, and parties residing in loyal States are not presumed to sanction the sale of their property in rebel lines for Confederate treasury notes. In using this argument, -we did not decide the character of the action. That must be determined by the pleadings. And we repeat there is nothing in the pleadings showing that this suit is for a misfeasance or nonfeasance, or for an offense or quasi offense committed by the sheriff, in bar of which the prescription of two years is applicable. Revised Statutes of 1870, section 2816, The application for rehearing is therefore refused.