*310 By the Court.

delivering the opinion.

Lee in his declaration alleges, that Fitts, as Sheriff, sold certain of his, Lee’s negroes, to satisfy several general Jifias. against him; That the negroes sold for more than enough to •satisfy the fi.fas.; and that Fitts refuses to pay over to him the surplus.

The defence of the Sheriff (and his sureties) seems to he, that he paid this surplus to certain mortgages on the negroes, made by Lee, viz: a mortgage held by Calloway and Harwell; a mortgage held by Harwell; and a mortgage held by Scars-brook; and that he did so by the direction of Lee.

To make out this defence, the defendants offered as evidence, the first two of the aforesaid mortgages, together with the judgments of foreclosure on them, the fi.fas. issued from those judgments, and the receipts in full, given to the Sheriff by the mortgagees; and also offered as evidence the testimony of Harwell, to the effect, that Fitts, the Sheriff, had recovered back the money paid or allowed by him to the said mortgagees, and for which they had given him the said receipts: they also offered evidence to show, that Lee was willing that the mortgagees should be paid out of the money raised by the sale of the negroes.

The Court rejected the whole of this evidence, and that is excepted to.

It is to be remembered, that the negroes were sold subject to the mortgages.

Was the foregoing evidence admissible ? We think that it was. A part of it went to show, that the Sheriff paid the money to the mortgagees in obedience to instructions proceeding from Lee himself, the owner of the money. This part, therefore, would have been in support of the defence to the action.

Another part of the evidence, however, went to show that if it was true, that the Sheriff had paid the money on the *311mortgages, it was equally true, that he had afterwards recov ered it back.

Now when he had recovered the money back, he held it, we may presume just as he had held it before he paid it over to the mortgagees, and he had held it before he had paid it over to the mortgagees, as the money of Lee, the negroes having been sold subject to the mortgages. The recovery back was evidence, that for some reason, the payment of the money to the mortgagees was an improper payment, and therefore, was evidence, that the money still, in law, belonged to Lee.

This being so, the part of the evidence aforesaid that showed that the Sheriff had recovered back the money, neutralized the part that showed that he had paid the money on the mortgages under the instructions of Lee.

If therefore, the evidence in both its parts as offered, had been received, it could not have changed the verdict.

This being so, a new trial ought not to be granted, although, it is true, that the rejected evidence was admissible; fora new trial, with that evidence in, ought not to result in a different verdict.

The new trial Act 1854, does not apply, as no motion was made for a new trial.

[l.] We cannot, then, hold the first exception good.

In relation to the “ Bank note,” this may be said :

It seems, that there was anote of Lee’s in Bank, on which Scarsbrook was an endorser; that Scarsbookheld a mortgage on the negroes aforesaid, for his indemnity as such endorser, and that the negroes were sold subject to the mortgage. But it also appears, that Lee directed the Sheriff, to apply a part of the money arising from the sale of the negroes, to the payment of this note, and that the Sheriff accordingly, did so apply a part of the money; and it does not appear, that the Sheriff ever recovered back this part.

[2.] Now the money thus paid away by the Sheriff, belonged to Lee, and Lee might do with it whatever he pleased. He might, therefore, order the Sheriff to pay it on the note, *312notwithstanding that the note might not be' entitled to it, and if he did, the Sheriff would be justified in obeying the order. And no action can lie against a man for doing what he is justified in doing. Unless, therefore, the Sheriff had recovered back this money, as he had that which he paid to the two mortgagees, there could be no action against him for this money.

Now, the charge of the Court in reference to this note, amounts to this, that the Sheriff was liable, whether it was by the order of Lee the owner of this money or not, that he had paid away the money on the note, provided he knew of Scarsbrook’s mortgage.

This charge, therefore, we think was wrong.

And if wrong, the error was manifestly such as to require a new trial.

Accordingly a new trial is ordered.