Dec. 1828.
From Lenoir.
Ln an action by a Sheriff for property levied on by him, his indorsement on the execution is competent evidence to prove the levy.
Trotee for a slave, brought by the Plaintiff, the Sheriff of Lenoir, against the Defendant, the Sheriff of Jones, both parties claiming under levies made by them upon the same slave. On the trial before his honor Judge Martin, on the last circuit, the Plaintiff introduced a judgment against one White, and an execution thereon directed to him, upon which he had endorsed a levy upon the negro in question. This evidence was objected to by the Defendant, but was admitted by the Judge.
After a verdict for the Plaintiff, the Defendant obtained a rule for a new trial, upon the ground thaCin-competent evidence had been received. But his Honor retaining his original opinion, discharged the rule, and gave judgment upon the verdict, from which the Defendant appealed.
No counsel appeared in this Court for the Appellant. The cause was submitted without argument, by Gaston, for the Plaintiff.
The levy indorsed upon the execution was an official act of the Sheriff, and one which it was his duty to make. But it was an act in pais, and the truth of it might be impeached by evidence on the other side. It was the Plaintiff’s interest to establish a seizure, or a levy in fact. But in the absence of such proof, the indorsement of a levy, or any legal circumstantial evidence which tended to the same end, was competent.
Per Curiam. Let the judgment be affirmed.