Spruill v. Bateman ( 1839 )

Gaston, Judge.

It was decided, in the case of Tarkington v. Alexander, 2 Dev. & Bat. 87, that a former sheriff has no authority to act under a writ directed to his successor, an(j that acts purporting to be done by him, under such pretended authority, are acts of usurpation. It seems to us, therefore, very clear that the paper annexed to the writ of venditioni exponas, and purporting to be a return thereof by the late sheriff, was not in law a return, and of course not a part of the record in that suit. Nor, as it appears to us, was the receipt on the execution from Henry Alexander to E. Mann, the late sheriff, an acknowledgment of record by the plaintiff of satisfaction of the judgment. It does not appear of record that Alexander had an interest in, or power over, the judgment. The receipt does not purport to be a release to the defendants — nor an acknowledgment of satisfaction. It testifies to a transaction in pais between Alexander and Mann, that the latter has paid to the former the amount of the judgment. As against Alexander and the plaintiff, so far as it is shewn that Alexander was authorised to act for the plaintiff, it is evidence of the fact — and therefore may be met by other testimony which explains or disproves that fact. ■

There was no error, therefore, as we think, in receiving such explanatory or repelling testimony, and the judgment below ought to be affirmed.

Per Curiam. Judgment affirmed.