PAYMENT-TAKING NOTE OF THIRD PERSON AS.-This question is discussed in Shepherd v. Busch, 154 Pa. St. 149; 35 Am. St. Rep. 815, and note, where the cases are collected.

CORPORATIONS-EFFECT OF Unauthorized ACTS OF AGENTS—ESTOPPEL. When the president and secretary of a corporation act openly and publicly as its agents in executing its contracts, with full knowledge and acquiescence of the directors, the corporation cannot escape liability on a contract so executed on the ground that the authority was not conferred by resolution entered on the books of the corporation: Sherman Center Town Co. v. Swigart, 43 Kan. 292; 19 Am. St. Rep. 137, and note; Pixley v. Western Pac. R. R. Co., 33 Cal. 183; 91 Am. Dec. 623, and note. Although the agent of a corporation can convey no legal title to land, unless his authority is in writing, yet the governing body may su act as to estop themselves from denying the existence of such written authority, and thus create an equitable estoppel in pais, as where the agent acted openly and notoriously and the corporation for a long time acquiesced in his acts: Alabama etc. R. R. Co. v. South and North etc. R. R. Co., 84 Ala. 570; 5 Am. St. Rep. 401. The authority of the agent of a corporation may be proved by the acts of the professed agent acquiesced in by the corporation: Melledge v. Boston Iron Co., 5 Cush. 158; 51 Am. Dec. 59, and note. A corporation may ratify the unauthorized acts of its agents without such ratification being expressed by formal resolution: Washington Sav. Bank v. Butchers' etc. Bank, 107 Mo. 133; 28 Am. St. Rep. 405, and note, with the cases collected; Leggett v. New Jersey Mfg. etc. Co., 1 N. J. Eq. 541; 23 Am. Dec. 729, and note. See also on this subject the notes to the following cases: Simpson v. Garland, 39 Am. Rep. 299; Farmers' etc. Bank v. Butchers' etc. Bank, 69 Am. Deo. 693; Blen v. Water etc. Co., 81 Am. Dec. 137; and Ward v. Williams, 79 Am. Dec. 387.

SHERIFTS—LIABILITY FOR ACTS OF DEPUTY.—A sheriff is liable for the wrongful official acts of a person who, representing himself as a deputy sheriff, acts as such in the presence of, and with the knowledge, consent, and approbation of, such sheriff, although the latter denies the appointment of such deputy, and it appears that his oath of office was irregularly filed.

SHERIFFS-OFFICIAL BONDS OF AS EVIDENCE.-If, in an action against a sheriff and his sureties on two bonds given by him, pleas are filed by the sheriff and his sureties jointly, such bonds are admissible in evidence, although some of the sureties on one bond are not upon the other. SHERIFFS-LIABILITY FOR FAILURE TO MAke Levy-Burden of Proof.— When a writ of attachment is placed in the hands of a sheriff to be levied, a bond of indemnity given, and property in the possession of defendant apparently subject to levy is pointed out, the sheriff is prima facie liable for a failure to make the levy.

Matthews and Whiteside, for the appellant.

Caldwell and Johnston, for the appellee.

157 COLEMAN, J. Appellant as plaintiff moved for a summary judgment against the defendant Carpenter, as sheriff, and his sureties, for failing to levy an attachment. The averments of the motion are, that the writ of attachment was placed in the hands of the sheriff, property pointed out to him as belonging to the defendant in attachment, and that the sheriff was duly indemnified to make the levy. The defendants' pleas were three in number: 1. That the writ was not received by him, or any one authorized to receive it; 2. That defendant had no property subject to levy under the attach

ment; and 3. The same could not have been executed by the exercise of due diligence.

The proof is ample to show that the sheriff, Carpenter, was liable for the acts of C. F. Porter as his deputy. The testimony of the clerk of the court showed that Porter acted as the deputy sheriff in the presence of the sheriff; that he was in the habit of receiving all kinds of process; that in 158 fact he receipted for executions in the name of the sheriff, by him as deputy, collected money on executions, made due return of the collections in the name of the sheriff, and was generally understood to be the deputy sheriff. To the same effect is the testimony of certain attorneys, who practiced in the court; and in regard to the particular writ of attachment, upon inquiry being made of Caldwell, whom the sheriff acknowledges to have been his regular deputy sheriff, was referred by him to Porter as the officer who had the writ for execution. There is other evidence, also, sufficient to satisfactorily show that Porter was recognized by the sheriff as his deputy.

The pleas are framed jointly for all the defendants, and there is no plea which justified the exclusion of either bond executed by the sheriff, although some of the defendants were sureties upon one bond, who were not sureties upon the other.

Section 3951 of the Penal Code imposes a penalty upon any officer required by law to file an oath of office, who enters upon the duties of his office without first taking and filing such oath in the proper office. The fact that Porter filed his oath of office with the clerk of the court, instead of the probate office, did not relieve the sheriff of his liability for the acts of Porter as his deputy, if the evidence otherwise satisfactorily showed that he, Porter, represented himself as deputy sheriff, and acted as such with the knowledge and consent and approbation of the sheriff; and, if the evidence is credible, there can be but little question of the existence of these facts: Joseph v. Cawthorn, 74 Ala. 414.

That property in the possession of the defendant, apparently subject to levy, was pointed out, and an indemnifying bond executed to the sheriff, is fully proven. The witness Roberts, the defendant in the attachment suit, testified that in fact the attachment was levied by the deputy sheriff, so far as to take control of the property, and for a consideration of twenty-five dollars paid to the deputy by him the posses

sion was released; but there was no entry of any levy entered on the writ of attachment or elsewhere.

The second and third pleas presented a good defense to the action.

An indemnifying bond is intended for the protection of the officer. Under our statute, no additional duty is imposed upon the officer because he has been indemnified. A bond

of indemnity does not devolve upon a sheriff to commit a trespass, or do an illegal act. In no event can it do more than shift the burden on him to show that the property 159 was not subject to levy. The evidence showed that the debt upon which the attachment issued was for rent of a dwelling, and the property pointed out was furniture in the rented house apparently in the possession of the tenant. Prima facie, the officer was liable for not making the levy, but he was not absolutely liable. If the property did not belong to the tenant-if it was not subject to levy by attachment-the plaintiff suffered no injury, and sustained no damage. Under the facts proven by the plaintiff, prima facie the property was liable, and the burden rested upon the sheriff to prove his defense, by showing that the property was not subject to levy under the attachment: Mason v. Watts, 7 Ala. 705; Leavitt v. Smith, 7 Ala. 181; Minter v. Bigelow, 9 Port. 483; Smith v. Castellow, 88 Ala. 355; Abbott v. Gillespy, 75 Ala. 184; Wilson v. Strobach, 59 Ala. 493; Governor v. Campbell, 17 Ala. 569. There was no error in admitting such testimony.

Section 12 of the act establishing the city court of Anniston (Acts of 1888, 1889, p. 569) provides that, in cases of appeal, if there be error, the supreme court shall render such judg ment as the court below should have rendered, or reverse and remand the same for further proceedings, as shall be deemed right. Although there is proof tending to show that the property pointed out to the sheriff may not have been subject to levy under the attachment, the real contest seems to have been rested upon other grounds. The rulings of the trial court were not in accord with the principles here declared, and we are of opinion that the ends of justice would be better promoted by a reversal of the case.

Reversed and remanded.

SHERIFFS LIABILITY FOR ACTS OF DEPUTIES.-The sheriff's officers, be ing his known and recognized deputies, he will therefore be held liable civilly for their misconduct in the execution of a writ: Hazard v. Israel,

1 Binn. 240; 2 Am. Dec. 438; King v. Chase, 15 N. H. 9; 41 Am. Dec. 675, and note; State v. Moore, 19 Mo. 369; 61 Am. Dec. 563, and note; Flanagan ▼. Hoyt, 36 Vt. 565; 86 Am. Dec. 675, and note; Jamesville etc. R. R. Co. v. Fisher, 109 N. C. 1; Governor v. Vanmeter, 9 Leigh, 18; 33 Am. Dec. 221, and note. See also the extended note to Campbell v. Phelps, 11 Am. Dec. 145. SHERIFFS LIABILITY FOR FAILURE TO MAKE LEVY.-The return of an execution wholly unsatisfied, after a negligent delay by the sheriff in making a levy, establishes prima facie his liability for the whole amount of the judgment: Guiterman v. Sharvey, 46 Minn. 183; 24 Am. St. Rep. 218, and note; Armour Packing Co. v. Richter, 42 Minn. 188. See further the extended notes to People v. Palmer, 95 Am. Dec. 423; Hargrave v. Penrod, 19 Am. Dec. 203, and Coville v. Bentley, 15 Am. St. Rep. 315, in which this question is thoroughly discussed.

MAXWELL V. Moore.

[95 ALABAMA, 166.)

MORTGAGES-A TENDER OF PAYMENT of a mortgage debt after default, and before the mortgagee has taken or demanded possession, if kept good, operates to discharge the lien of the mortgage, and extinguish the title of the mortgagee. In such case the mortgagor may recover the mort gaged property from a purchaser at a subsequent sale under the mortgage.

ACTION to recover a mule purchased by defendants at a foreclosure sale under a mortgage executed by plaintiff. Defendants filed certain pleas, to which plaintiff interposed replications, and demurrers were filed to these replications. The demurrers were overruled, and judgment rendered for plaintiff. Defendants appealed.

Wood and Mayfield, for the appellants.

Fitts and Somerville, for the appellee.

168 CLOPTON, J. The principal question involved in the special pleas, replications, and demurrers to the replications, is, whether a tender of the amount due on a mortgage of personal property, after condition broken, operates, when kept good, to discharge the lien of the mortgage, and revest the title in the mortgagor, so that he may maintain an action of detinue against the mortgagee, who has taken possession after tender made, sold the property under the mortgage, and purchased at the sale. The contention of appellants is, that, as mortgages are governed in this state by the principles of the common law, a tender cannot effectually extinguish the lien, unless made at the time of payment fixed by the contract of the parties-an offer of strict performance of the condition.