Twitchell v. Shaw

By the Court. The receipt which is made part of the case, is not produced; but we understand that it was not a release under seal, but a receipt for three dollars in full satisfaction of the debt. We are strongly inclined to the opinion that as between the parties, a receipt for a smaller sum cannot operate as the discharge of a larger, because it is without consideration for the excess, and is not an accord and satisfaction. Brooks v. White, 2 Met. 283; Tuttle v. Tuttle, 12 Met. 554. But another ground appears to us decisive. We do not understand that after the execution was delivered to the officer for service, the plaintiff, the execution creditor, gave him notice not to serve it. The. debtor exhibited his receipt, and offered a witness to prove the settlement. But the officer was not bound to investigate the genuineness or sufficiency of the receipt; he held an execution from a court of competent jurisdiction, and that was a legal justification to him for talcing and selling the present plaintiff’s property. No action, therefore, either of trespass or case can be maintained against him by the present plaintiff. Wilmarth v. Burt, 7 Met. 257. The plaintiff not having directed the officer to discharge the execution, or forbear serving it, the question whether he could do so, and thereby take away the lien of the person acting as attorney, or whether he had a lien does not arise. Judgment for the defendant.