Judgment was obtained in May, 1823, in the supreme court, in favor of the plaintiff against Cairns and his co-defendant Henderson, who is impleaded with him, for $6776 debt and $14,20 costs. Execution was issued thereon in May, T823, and $613,56 levied by the sheriff, as appeared by his return, and paid to the plaintiff. The sheriff returned nulla bona as to the residue of the debt. An alias fi. fa. was issued on the 18th of July, 1840, under which the sheriff of Kings county levied on goods which were claimed by Mrs. Cairns, the wife of the defendant, and a sheriff’s jury found the title in her, and the execution was thereupon returned nulla bona. Another execution issued to the sheriff of Hew-York in the same month, and he collected and paid to the plaintiff $251,13, and returned nulla bona as the residue. These facts appeared only by the executions and the sheriff’s return thereon. The returns of the sheriff to executions issued to him, are evi*26clence of any fact which he is bound to return. His official oath and his responsibility to the aggrieved parties, in case of a false return, and the presumption that a man in office when he has no interest (if he has an interest he cannot act) will honestly discharge the public duties which he has assumed, give to his official acts the weight of a judicial examination on oath. This evidence was therefore as admissible as if the sheriff had proved the same facts. They were also sufficient to repel the presumption, arising from lapse of time, that the judgment was paid. The defendant was unable to pay every time that an execution issued against him. One issued in May, 1823. Then only $613,56 was collected, and the sheriff could find no property to pay the residue of the debt; certainly the debt was not then paid. In July, 1840, two executions were issued; on one, a levy was made on property which the wife claimed, and which was held to be hers. Certainly the defendant then had notice of the judgment, and that an attempt was made to enforce it; yet he did not alledge, nor did his wife, that the judgment was paid, but only that the property levied on belonged to his wife. If it had been paid, the defendant or his wife could have applied to have that execution set aside, instead of only claiming the property of his wife. On the other execution the sheriff levied $251,13, and paid it to the plaintiff, and he could find no other property, to pay the residue of the debt. Thus the payment of a part of the debt, and the insolvency of the defendant in 1840, are both established, and cannot repel the presumption that the whole judgment was paid.
[New-York General Term, June 11, 1852.Edwards, Mitchell and Roosevelt, Justices.]
Our decision in Waddell v. Elmendorf, (12 Barb. 585,) was that the provisions of the revised statutes as to the only mode of repelling a presumption of payment of a judgment after twenty years, so far as they are new, do not apply to judgments rendered before the revised statutes took effect.
The judgment must be for the plaintiff, notwithstanding the bill of exceptions, with costs.