Opinion
(December Term, 1860.)
A receipt signed by a sheriff for a sum of money, "to be applied to the payment of a judgment" obtained against the defendant at a previous term of a court of the county in which the defendant lived, and of which the maker of such receipt was sheriff at the time, is no evidence that an execution was in his hands when the money was paid to him.
SCIRE FACIAS to revive a judgment, tried before Saunders, J., at last term of RICHMOND.
Ashe for plaintiff.
Leitch for defendant.
The material question arose upon the plea of payment. The defendant's testatrix lived in Richmond County, and had paid the amount of the judgment in question to one William Buchanan, then the sheriff of Richmond County, to whom an execution would have ordinarily issued had one been put in force, who gave her the following receipt: "Received of Christian D. Calhoune three hundred dollars and thirty cents, to be applied to the payment of a judgment in the Superior Court of Richmond, in the suit of Thomas J. Covington against her," dated 17 March, 1857. This money was not paid to the plaintiff. There was no evidence that an execution had issued to the sheriff returnable to the next term after the receipt, but the defendant's counsel insisted that that fact was inferable from the receipt itself, and called on the court so to charge the jury; but his Honor declined giving such instruction and instructed them that there was no evidence before them that the sheriff had such an authority. The defendant's counsel excepted.
Verdict and judgment for plaintiff, and appeal by the defendant.
The plea of payment being a plea by way of confession and avoidance, the burden of the proof in support of it was upon the defendant. He, accordingly, for the purpose of showing that the judgment in question had been paid, introduced the receipt of one (32) Buchanan, who was the sheriff to whom the writ of fieri facias would have been properly directed. A payment to him, however, availed nothing, unless at the time when he received the money he was authorized to do so by virtue of a fieri facias, commanding him to levy it. S. v. Long, 30 N.C. 415; Ellis v. Long, ibid., 513; Mills v. Allen, 52 N.C. 564. The question, then, was narrowed down to the point whether the receipt afforded any evidence that the sheriff had the writ of execution in his hands when the money was paid to him. We agree with his Honor in the court below that it did not. It does not purport that the amount paid was in satisfaction of an execution, but that he, the sheriff, received it "to be applied to the payment of a judgment," etc. These terms exclude the idea that he then had any execution in his hands, and show that the defendant had failed to offer any testimony which the court could submit to the jury as tending to support his plea.
The testimony introduced by the plaintiff being only of a rebutting character, it is, of course, unnecessary to notice it in an inquiry, whether any evidence had been offered by the defendant in support of an issue, the affirmative of which he was bound to sustain. For, if he had offered any such testimony, the jury must necessarily have been called upon to decide between it and the opposing testimony of the plaintiff.
PER CURIAM. Affirmed.