#### Benjamin J. Boulware, and others, *vs.*James H. Witherspoon, and others.

In October, 1847, and March, 1848, the sheriff gave the defendant in execution loose receipts for moneys — in the aggregate over three thousand two hundred dollars — “to be applied to the credit of executions in the sheriff’s office.” Credits given by the sheriff, dated the 1st January, 1849, appeared on the executions, for over four thousand five hundred *dollars:*— Held, in the absence of all other proof, that it was right to conclude, that the sums for which the receipts were given were included in the credits afterwards entered.

BEFORE JOHNSTON, OH., AT LANCASTER, JUNE, 1854,

It was referred to Mr. Moore, as special referee, to ascertain and report, to what executions in the Sheriff’s office against Wm. Gr. Raines, a fund of about four thousand dollars in the . Commissioner’s hands, arising from sales of the property of Raines, was properly applicable. Of the executions produced at the reference, the eight oldest were owned by the hank of the State of South Carolina. One of these, in the name of H. T. McGee, of which the hank was the assignee, was lodged on the 31st October, 1846: the other seven, all in the name of the bank, were lodged on the 18th September, 1847. A question made on the reference was, whether these executions should not he credited with two payments made by Raines to sheriff Cockrell, one for two thousand six hundred dollars on the 28th October, 1847, and the other for six hundred and fifteen dollars on the 27th March, 1848. Eor these payments loose receipts were given by the sheriff’s deputy or clerk, stating that the moneys were “ to be applied to the credit of executions in the sheriff’s office.” Upon the executions themselves no credits as of those dates appeared; hut it did appear upon the executions that on the 1st of January, 1849, the sheriff paid *451to the plaintiff’s sums amounting to over four thousand five hundred dollars.

On this matter Mr. Moore reported as follows:

“ Two receipts for money, of Cockrell, who was then sheriff of Eairffeld, to William Gr. Raines, were offered in evidence;— the money to he applied to executions in the sheriff’s office, against Raines — one for two thousand six hundred dollars, dated 28th October, 1847; and the other for six hundred and fifteen dollars, dated 27th March, 1848. But as no evidence was offered, showing that Raines intended the money to he applied to these executions of the Bank against him, or that such application was, in fact, made, I presume that the sheriff did his duty, and applied the money to other older executions against Raines; or then, that the credits which I find upon the executions, although entirely subsequent, to the date of the latter receipt, are made up, in part, of the money thus received by the sheriff. I therefore, cannot allow these payments, as additional credits upon the executions of the hank against Raines.”

Various exceptions to the report were taken by the plaintiffs and were heard before his Honor, the Chancellor, who made the following decree:

Johnston, Ch. There is scarcely a single exception taken, which serves the genuine purpose of an exception, which is to point out the error complained of, and exhibit the nature of the error. A general complaint is not an exception. An exception should set forth distinctly and specifically the ground of complaint.

I would exemplify what I mean by referring to the first exception before me. This asserts that the referee should not have allowed the four executions against Raines, which he has allowed. Now if I ask why he should not have allowed them, —I expose the defect of the exception taken; which is that the ground upon which this exception should have been disal*452lowed is not set forth. I might apply the principle of these remarks to most of the exceptions.

Taking up the substance of what was said before me. I find that the plaintiffs insist upon the three following points:

* # # * *%*

3. Point; which is that the plaintiffs are entitled to have the executions credited beyond the amount of credits actually given, with the amounts specified in the loose receipts given to Raines by sheriff Cockrell.

• I agree with the referee. The sheriff, in the absence of proof, must be presumed to have done his duty, and to have properly applied the money he receipted for.

■■ It was Raines’ fault to have done business so loosely, if he intended to have a specific application made of the money.

The plaintiffs had full opportunity to get Cockrell’s testimony on this point. The plaintiffs live in his district, and have full access to his office; and perhaps know that there are many executions against Raines to which the money was applicable or has, by special direction, been applied. Why then did they reserve this testimony until it was too late for the bank to rebut it, (if it was its duty,) unless indeed, at the expense of another twelve months addition to the proceeding — which the plaintiffs had already spun out to an intolerable extent.

I do not regard it as a duty, to protract a ease carried on in the spirit that has characterized this in its whole course, where so much has-been fished after, and strongly charged without being proved; and I overrule the exceptions and confirm the report; and it is so ordered. I’m inclined to dismiss the bill with costs, but reserve that point lest there should remain some further order necessary to be taken.

The plaintiffs appealed on the ground, *inter*alia, because his Honor should have ruled that the receipts of Cockrell, sheriff, should be entered as credits on the executions.

Hammond, for appellants.

*Buchanan,*contra.

*453The opinion of the Court was delivered bj

Johnston,'Ch.'.

In affirming the decree, it does not seem-necessary-'to-say anything, except in relation to the receipts' given by Mr. Sheriff Cockrell.

• One of these is for. two thousand six hundred dollars, and bears date in October, 1847; and the other for six hundred and fifteen.dollars, and dated in March, 1848.

Let it be conceded, now,- that' there were no executions in the sheriff’s office older than those produced before the referée,-to which these monies should have been applied; what is the consequence?- ...

"Wefind from the report, that at a time subsequent to the reception of these sums of money by the sheriff, hei applied a much larger sum to the different executions of the bank, in his hands. The-question arises whether this application does not account for the money-included in these receipts ?■. ■ . ■

If the sums .thus credited upon the executions tallied exactly in amount,, with the sums previously receipted for by the sheriff, we should naturally conclude that the credits were for'the identical sums mentioned in the receipts; — though, indeed, the question "might arise whether the interest on the executions should not be adjusted,-by ante-dating the credits, so as to correspond with the payments made to the sheriff.- But, I think, that unless there was proof .'showing .funds - in the sheriff’s hands, fund's in addition to *those. acknowledged hy his receipts,*we shbuld.be justified in considering the credits were given on account of the-monies for-which he had receipted.

The• credits entered on the executions do not, however,- correspond.exactly with the sums contained in the receipts of the sheriff. • .They.are for a.larger amount. Plow does that' circumstance affect the question ? .Unless we were’shown that he received monies’from other sources, to an amount.sufficient to have produced the credits, independently of, and in addition to that mentioned in the r eceipts, we should still be bound to regard this latter money as having entered into the credits. If in the *454absence of a such a shewing this would he the natural and justifiable conclusion; then, of course, it follows, that he who would have a different conclusion drawn, must shew grounds for it by proof of funds to an amount sufficient to account for the credits endorsed on the executions, without resorting to those mentioned in the loose receipts.

In this case we have no proof of any source whence the sheriff derived the monies which he applied, except that which arises from the receipts given by him; — at all events, no proof of additional funds of *sufficient amount*to produce the credits, independently of the money acknowledged in the receipts.

This proof it was the duty of. the plaintiffs *to give,*if it existed; and having failed to give it, the referee was justified in the conclusion which he drew.

Suppose Raines, himself, was now calling the sheriff to account for the monies received by him, — would not the credits which he put on the executions be a sufficient account, on his part, for all the, monies he is proved to have received ? Certainly. And I suppose it is as good an account when the demand is made by his creditors, as if it were made by himself.

Nor is this all. The money was receipted for in 3847 and 1848. The application was made-in January, 1849. Would Raines have been quiet all this time, if the whole of his payments had not been credited ? Would his creditors have been quiet ? More than this, — is it natural to suppose that the bank herself, — which these plaintiffs now contend was entitled to this money, — would the bank have been quiet ? Would that creditor, who has been driven to the long and tedious process which this suit exhibits, have submitted to this delay and vexation in getting in her demand, if she had nothing to do but to call on the sheriff and get the money ?

It is ordered that the decree be affirmed, and the appeal dismissed.

Dukkin and Darsan, CC., concurred.

*Appeal dismissed.*