delivered the opinion of the court.

The liability of the sheriff to an action of replevin, under the circumstances of this case, is settled in the case of Bradley v. Holloway, 28 Mo. 150.

The exchange of bank notes for the convenience of bringing suit could not, of course, be regarded as a voluntary payment to the sheriff, or a waiver of claim on the part of the railroad company, and the understanding of the parties to it at the time of its occurrence having been submitted as a fact to be passed upon under proper instructions, there is no ground for disturbing the verdict and judgment. The other judges concurring, the* judgment of the court is affirmed.