Every plaintiff is undoubtedly entitled to demand specie, and is not bound to receive bank bills in payment of his judgment. But the greatest injustice would be done if in actions against sheriffs for an insufficient levy, the Court were not to take notice that the currency of the country is in bank bills; and that where it is not stipulated to the contrary, all persons calculate upon paying and receiving such bills. If, therefore, a sheriff makes a levy upon property which would be adequate were it sold for bank notes, but inadequate were it sold for specie, he cannot in reason, be chargeable upon his bond, unless previous notice be given him that specie alone will be receivable. The jury should have been instructed to inquire whether the levy were sufficient, if the property had been sold for bank notes; and if it wras, it would, in my opinion, have discharged the sheriff, without previous notice distinctly given that specie alone would be received. Nor is it right, that the sheriff should be chargeable with any depreciation occurring to the property during the time that the execution was foreborne by the plaintiff; of this fact of forbearance, the sheriff’s return is prima fade evidence; and it should have been taken into consideration by the jury. I think there ought to be a new trial.
The judge in his charge to the jury-stated, that it was the duty of the sheriff to levy on personal property before real; and it must be taken, I think, that the law was so stated to strengthen the claim of the plaintiff and weaken the ground on which the defendant *334stood. In a contest between the defendant in the execution and the sheriff, on account of the. sheriff having levied on the real instead of the personal property of the de-fent[ant, it would be indispensable so to declare the law to be; but between the plaintiff in the execution and tlie sheriff, such .misconduct of the sheriff cannot be examined; it cannot be the ground of complaint or censure; and to have stated it in the present case may have thrown undue weight in the scale against the defendant.
It was very properly left to the jury to ascertain whether the levy on Jones’s property, made on the 15th of January, 1819, was sufficient to sátisfy the execution then levied. If it was sufficient, I think the defendant ought to be excused, although it afterwards turned out. riot to be sufficient on account of its depreciation in value.But the judge again leaves it to the jury to ascertain whether, «if the sheriff had levied on the whole of the goods in the store, the plaintiff’s debt; with interest, would have been satisfied or not.” This part of the charge seems to interfere with that which directed them to ascertain « whether the property levied on, on the 15th of January, 1819, -was sufficient to satisfy the execution levied on it;” because, although they found that it was sufficient and the- defendant thereby excused, yet if they again found that in case he had levied on the whole of the goods in the store the debts with interest might have been satisfied, they must-have found'a verdict against him on that account, although they had just acquitted him of blame, because the lands and negroes levied upon, on die 15th January, 1819, were sufficient. I think the rule'for a now trial should be made absolute.
The breach assigned is, that' the sheriff did not levy on property sufficient to satisfy the plaintiff’s execution, he having it fully in his power to do so. The levy was made in January, the sale took place the December following by another officer, under a *335 .Venditioni exponas, the sheriff Garter having gone out of office in May. The sheriff insists that the property levied on was of sufficient value at the time of the levy; but from decline in price, and other causes not within his control, when sold in December the proceeds were insufficient to satisfy the plaintiff’s execution. The plaintiff relies upon the proceeds of the sale as the evidence of the value, and also insists upon the specie price as the sole standard. The judge informed the jury “that it was the duty of the sheriff to levy Jon personal property before he levied on real property; and left it to them to ascertain from the evidence, that if the sheriff had levied on the goods in the store, whether the whole debts of the plaintiff in the execution would not have been satisfied, and instructs them to ascertain from the whole evidence whether the property levied on was sufficient on the 15th January, 1819, the time of the levy, to satisfy the executions levied; and that it was the right of the plaintiff to demand specie, and it was no fraud in the plaintiff’s agent to • demand specie, nor could the sheriff complain of it.; as every plaintiff had a right to demand it in payment of his execution, and in this case the sheriff must have known the plain•tiffs were northern merchants and were not bound to receive bank notes, even if he had sold for them.” The above is a quotation from the judge’s charge, taken from the transcript, I have taken down the words, for I am not certain that I understand in what manner it was intended to, or did bear, upon the case. The first position is certainly correct ás applying to, a defendant in an execution; he and he only can complain; so far as it affected the parties in this action, it was irrelevant, nor do I see wherefore it was introduced, unless it was to throw on the defendant the responsibility of a loss upon a deferred sale, no matter from what cause the loss arose; if the property levied on was not quite of sufficient value to satisfy the execution, and if it stood alone, I would understand it without that qualification, but taken in con-*336flection witli the real object of their inquiry as pointed out by the charge, it is but a fair construction to add that qualification to it: but even so explained, it has an jmpr0per influence on the case; for instead of making the difference in the value of the property (levied on) at the time of such levy, and the amount of the execution, the measure of the damages ¡'this act being considered by. the judge as wrongful,) he subjected the sheriff to bear the whole loss arising from the deferred sale, and thus the difference between the actual proceeds of such sale and the amount then due on the execution became the measure of the damages. This is the most harmless way in which I can understand it. I am also at a loss how to apply to the case the remark as to the right of creditors requiring payments in specie. It points at two parts of the case. From the evidence it is quite clear that it was a question on the trial, who caused the delay in the sale. The defendant contended that the plaintiff did, and introduces the circumstances which took place on the day appointed for the sale on the execution returnable to August, after Carter was out of office. Among other things the defendant proved, that the plaintiff’s agent, after being pressed by Jones-, the defendant in the execution, more than once for. delay, observed that he could not consent to it. but as he should demand specie he imagined there, would be no sale, -and insisted that this ivas evidence from which the jury might infer that the sale was deferred by the act and connivance of the plaintiff’s agent, and that he the sheriff ought not to be responsible for any loss occasioned by such delay. Now if the judge pointed that part of his charge to this circumstance, or ' rather if the jury so understood it, it was an error; for however lawful it might be for the plaintiff to demand specie, it was relevant tor the jury to infer from this act that the plaintiff consented to and connived at a delay; whether it proved it or not is not for me to say, it was for the jury. But the plaintiff might cause a delay by a *337lawful as well as by an unlawful act, which the defendant did not controvert at all. All that he required was, that the consequences of the plaintiff’s act (and whether it was the plaintiff’s act the jury were to judge) should not be thrown upon him. If, therefore, the judge is understood as informing the jury that as the act was lawful, the consequences of it ought not to be borne by the person who did it, he erred; for one of the best criterions to ascertain whether an act is lawful or unlawful, is whether the actor bears himself all the consequences, or if they fall on another; if on the actor alone, it is almost. I believe I may say always invariably, lawful; if on others, and they are injured, it is most usually unlawful. These two points go to the standard by which the damages should be measured. But this specie payment may point to a more important question. It seems that in ascertaining the value of the property levied on, the plaintiff contended that the specie value was the true criterion; and if the judge meant by that what the property would sell for in specie, after reasonable notice of the terms, I am not prepared to say that he was wrong. I am fully confident that he would not be wrong, if he means a sale for current bank notes, with such a discount on them as would reduce them to their specie value. But if he means such a sum as the property would sell for in actual specie, ’without giving notice a reasonable time before hand that such would be the terms of sale, I am fully confident he is wrong. For such rule would place sheriffs entirely at the mercy of the plaintiffs, and they, to save themselves from ruin, from .fines and forfeitures and civil liabilities, would in every case levy on treble the value of the property or more, and in cases where it was not intended to demand specie, when the sheriff might be easily placed on his guard, by only requiring that before he shall he subject to those fines, penalties, forfeitures, and liabilities for breach of duty, the law should require *338what is consonant with practice and convenient, viz. that notice should be given.
I do not intend to say that bank notes are money, or a tender in payment of debts, but by consent. Nor do I say that a payment in bank notes may be refused without any previous notice to that effect. All that I intend to say is this, that when a sheriff or other officer is charged with a breach of duty in office, his considering the cur, rent bank notes of the country as money, and acting upon that basis, without notice to the contrary by those concerned, is not a breach of duty. But I do not mean to say that if the sheriff sells for bank notes without notice to sell for specie, that the creditor is bound to take such notes, or that the sheriff is not liable to be sued for the money; but it cannot be considered as a malfeasance in office, or subject him to any fine or penalty, or any action where the grievance is breach of official duty.
I.think that, as it is pretty apparent that the jury was misdirected by the judge, there should be a hew trial.