First v. Miller

OPINION of the Court, by

Ch. J. Boyee.

Oh a motion against the defendant as deputy sheriff, for money collected by him on a, fieri facias, the plaintiff offered to prove that the money had not been paid to his attorney, but the court below rejected the evidence as inadmissible, to which the plaintiff excepted, and a judgment being given against him he has brought the case to this court by writ of error.

It docs not appeal- that any evidence had been adduced by the defendant to prove that the money had been paid to the plaintiff’s attorney ; and if there were no such evidence adduced, it is plain that the testimony offered by the plaintiff was immaterial. It is true that the plaintiff had previously read the return of the sheriff, which states that he had made the money and paid it to the plaintiff’s attorney. But most unquestionably the sheriff’s return was no evidence of his having paid the money. Such g return is not commanded to be made by the writ, nor is it authorised by law. The sheriff may indeed excuse himself by showing that he has paid the amount collected to the plaintiff or his attorney, but he must prove the fact by other evidence than his return. To put the plaintiff upon the proof that he had not received the money, because the sheriff had returned that he had, would be preposterous in itself and attended witli the most mischievous consequences.

If then the court below considered the return of the sheriff as no evidence of the payment of the money, and we cannot presume otherwise unless it had been so stated in the bill of exceptions, they might with propriety refuse to listen to the evidence offered by the plaintiff as being immaterial, nor can their having done so be considered by this court as any cause for reversing their judgment.

Judgment affirmed with costs.