David Y. Portis v. Cornelius Ennis, 27 Tex. 574

Moore, J. The evidence offered by the appellant, who was the defendant in the court below, to prove payment of the judgment upon which this suit was brought, did not tend to establish this fact, and was therefore properly excluded from the jury.

The return upon the execution, which was in no manner contradicted or weakened by the testimony of the sheriff when properly understood, if this could have been legitimately done, clearly shows that the indorsement made upon the execution, upon which "the appellant relied as evidence of satisfaction of the judgment, Was erased before the final return was made by the sheriff. These entries were made on the execution on the same day; both were unnecessary; if the sheriff had intended the first one to stand, as his return upon the execution, no reason can he seen why he should have made the last.

The sheriff no doubt was acting upon instructions given him in a letter from the attorney of the plaintiff in the original suit. After making the first entry he seems, evidently, to have regarded it as not authorized by his instruetions, or not such as the law gave him authority to malee, and therefore erased it and made the return which is now found standing upon the execution. If this entry had not been erased by the sheriff, as is clearly to be. presumed was the case, it could hardly be said to furnish any evidence of the payment of the judgment, (Abercrombie v.

Chandler, 9 Ala., 625.) The plaintiff’s attorney was not shown to have had authority to collect the judgment except in money; if he was authorized to settle it in any other manner, the burthen of proving it devolved upon the appellant. This was not done. The acceptance of the appellant’s draft therefore did not operate as a satisfaction of the judgment. (Wright v.

Daily, 26 Tex., 730.) Nor do we think the sheriff's return can be properly regarded as evidence of transactions between the defendant in execution and the plaintiff’s attorney, with which helms no connection, and about which he has no information except such as he may have derived from subsequent statements of the attorney. The testimony of the witness offered by the appellant to prove payment of the draft alleged to have been given to the attorney 'of the appellee in the original suit, neither showed that such a draft had been given or paid, and was consequently properly ruled out by the court.

And there being no evidence before the jury, from which they could have properly inferred satisfaction of the judgment, there was no impropriety in the judge so instructing them. The clerk is required to enter the returns made by the sheriff on the execution docket. They are made thereby a part of the records of his office, and of the proceedings had in the case, and it would seem, therefore, might he legitimately used as original evidence.

But if not, as the execution and original returns endorsed on it by the sheriff were also subsequently introduced in evidence, no injury could have resulted from the admission of the docket. It certainly might, with propriety, have been received after the execution had been introduced, to strengthen the presumption arising from an inspection of the execution, that the erasure of the first entry was made by the sheriff before the return of the execution to the clerk.

Although the evidence may have been premiaturely offered, as the jury were entitled to have considered it when the case was finally submitted to them, the refusal of the court to exclude it when offered, resulted in no injury to the appellant, and furnishes no ground for a reversal of the judgment. There being no error in the judgment in this case, it is affirmed. Judgment affirmed.