#### HEZEKIAH G. SPRUILL, Ex’r. of BENJAMIN SPRUILL, vs. DANIEL N. BATEMAN, Adm’r. of ZEBULON TARKINTON et al.

Dec. 1839

A former sheriff has no authority to act under a writ directed to his successor, and therefore a writing purporting to be a return by the former sheriff, made upon such writ, is not in law a return, and of course not a part of the record in that suit. Nor is a receipt expressed to be in full upon such execution, given by one admitted to he, but not appearing on the record to be, the real plaintiff, to the former sheriff, an acknowledgment of record to the satisfaction of the judgment. It is but evidence *in pais*of the fact of payment, which may therefore be met by other testimony to explain or disprove that fact.

This was a scire eacias to revive a judgment and obtain an execution thereon. *Pleas*— Nul *tiel record*— Pay*ment and satisfaction*— Accord *and satisfaction.*

Upon the trial, at Chowan, on the last circuit, before his honor Judge Nash, the plaintiff shewed that there was such a record; whereupon the defendants produced a writ of *ven-ditioni exponas*directed to *“*the sheriff of Tyrrell county,” on which was an account of the sales of the property therein mentioned, purporting to have been made by “ E. Mann, late sheriff,” and a receipt given by Henry Alexander, who, it was admitted, was the real plaintiff, 'to E. Mann, “ late sheriff,” and expressed to be in full of the judgment; and the defendants contended that this was an acknowledgment of record of the satisfaction of the judgment; but it was insisted on the other hand, that Alexander, the real plaintiff, could shew that the receipt did not speak the truth, and that in fact the money had not been received by him, and he offered evidence to prove this, which was objected to by the defendant, but received by the Court.

It appeared that executions had been regularly issued upon the judgment in question, up to the time when the writ of *venditioni exponas*was issued, and that the property mentioned in the latter writ had been levied upon by E. Mann, who was then sheriff, but who had gone out of office before the *venditioni exponas*issued. There was a verdict and judgment for the plaintiff, and the defendant appealed.

No counsel appeared for the defendant in this Court.

*J. H. Bryan*for the plaintiff.

*490Gaston, 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.