#### THOMAS J. COVINGTON v. ARCHIBALD BUIE, Executor.

A receipt signed by a sheriff for a sum. of money, “ to be applied to the payment of a judgment,” obtained against the defendant ata 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.

Tins was a scire eaoias to revive a judgment, tried- before Saunders, J., at the last Term of Richmond Superior Court.

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 Thos. J. Covington against her,” dated March 17th, 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 inferrible 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.

Yerdict and judgment for plaintiff, and appeal by the defendant.

Ashe, for the plaintiff.

Leitoh, for the defendant.

Battle, J.

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 pur*32pose of showing that the judgment in question had been paid, introduced the receipt of one Buchanan, who was the sheriff to whom a writ of fieri facias would have- been properly di3-ected'. A payment to him, however, availed nothing, unless at the time when he received the money, ho was authorised to-do so by virtue of a- fieri facias, commanding him to levy it; State v. Long, 8 Ired. 415 ; Ellis v. Long; Ibid. 513 ; Mills v. Allen, 7 Jones, 564. The question, then, ivas narrowed down to the jioint, whether the i-eceipt 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 Ise, the sheriff, received it “ to be applied' to-thepay.ment of a judgment,” &c. These terms exclude the idea that lie then had any execution in his hands, and shows that, the defendant had failed to offer any testimony which the Court could, submit to tire 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 enquiry, 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 mast necessarily have been called upon-to- decide between it and the opposing testimony offthe plaintiff.

Per Curiam,

Judgment affirmed.