The plaintiff obtained judgment in the Supreme' Court* in a suit against McKesson, and others; and- McKesson paid to the Clerk of Burke .Superior Court, the present defendant, §52000, and the Clerk gave McKesson a receipt for that; amount as paid upon the plaintiff’s execution against McKesson. The payment was on, 5th April, 1862, in Confederate treasury notes, and was endorsed upon the execution “ paid, — see execution .docket.” The execution docket was afterwards destroyed by accident.
1. The first allegation urged against the liability of the-Clerk and his sureties, is that the execution on which the money was paid was irregularly in his office; for although the statute allows an execution to issue from the .Supreme Court, returnable to the Superior Court, -yet it directs when that, is done„ that a certificate of, the judgment in the Supreme Court shall be .transmitted to the Superior Court and docketed there. Rev.. Code, ch. 33, sec. 6. And it did not appear positively that the certificate had been sent down.
The. indorsement of the Clerk paid, see execution .docket,”1 was evidence tending to show, that it had been sent down andi docketed, else what did he mean by — “ see execution docket ?-* And probably it ought to be presumed that it was sent. But. *473whether the certificate was sent or not, the execution was there docketed, and the Olerk and the parties assumed that it was regular, McKesson paying the money, and the Clérk receiving it. He received it by. color, and, as-we think, by virtue of-his-office, and cannot beheai’d to say that there was some irregularity in the proceedings. Broughton v. Haywood, Phil. 386.
2. The Clerk and his sureties being liable, the second question is, for how much ? The payment was in Confederate treasury-notes, which were depreciated; the payment ■ satisfied the debt, not to.the nominal amount of the-notes,- but to the amount ot their value in gold: Emmerson v. Mallett, Phil. Eq., 234. And that is the amount for which the Clerk is liable. If there is a remainder, the defendants-in the execution are liable* for-that.. It would have been otherwise, if the payment had been- made to the plaintiff himself.
As the Clerk-received the ■ notes in April," 1862, -when they were not much depreciated, and were-generally received in the payment of debts, it would-have been a discharge of the debt to the nominal amount - of the notes, - under - the 'decision in Atkins v. Mooney, Phil. 31, but the Clerk’had express notice-not to receive them, and therefore the case of Atkins v. Mooney, does not apply.
The plaintiff is entitled to treat the clerk as his agent to the extent of the value of what the Clerk received for him, and hold him responsible for that amount; ■notwithstanding-he had instructed him not to-receive-the-notes.
It is true - the -plaintiff might-have repudiated the action of the Clerk .and still-held the defendant-in the execution liá-ble for-the full amount, but -he was not obliged to-do so. And when he seeks to make the Clerk liable-for the value of what he received, it is not-for. the Clerk to say that he recéived- it in disobedience to instruction. His Honor -held that the-'.Clerk was liable for the nominal amount of the notes'$2,000, because he had received them contrary to instructions. 'We think that *474for that very reason he is not liable for their nominal, but only for their real value.
If his receipt to McKesson had satisfied the execution to the nominal amount of the notes ($2,000), he would have been liable to the plaintiff for the amount; but inasmuch as he had no authority as the plaintiff’s agent to receive the notes, and the plaintiff might have repudiated it altogether, it follows that the defendants, McKesson and others, are not discharged at all, except in so far as the plaintiff has subsequently ratified it.
And he has ratified it only to the extent of receiving from the Cleric the value of the notes. It is true that the plaintiff in his complaint, demanded of the Cleric the whole amount of his debt against McKesson, and therefore, it may be supposed that he has ratified the action of the Cleric, his agent, in receiving the notes; but that is not true, because while he demands the whole amount, he does so, not because he ratifies the act of the Clerk in receiving the notes for him but as having received so much value for him, and McKesson will be discharged not to the amount the plaintiff demands, but to the amount of the value of his payment to the Clerk. It was error therefore in his Honor to hold that the Clerk was liable for the nominal amount of the notes, $2,000 ; he is liable only for their .actual value. Treating the Clerk as the plaintiff’s agent, he is not liable for interest until the demand. It does not appear when the demand was made and therefore we must take it that he is liable for interest only from the commencement of this action.
The judgment below must be modified and judgment entered in this Court for the value of the $2,000 confederate treasury notes, applying the legislative scale of April, 1862, with interest from the commencement of this action.
This being a modification of the judgment below, each party will pay his own costs in this Court; ..the plaintiff will have judgment for all other costs.
Judgment modified and judgment here for plaintiff.
Pee Cubiam.