The opinion of the court was delivered by
Woodward, J.A sheriff with a fi. fa. in his hands is so far the agent of the plaintiff, that payments made to him by the defendant before the return day of the writ, extinguish pro tanto the judgment. And such payments may be indicated by the sheriff’s endorsements on the writ, even though they be without date or signature. They have not the effect of a legal return, for a sheriff’s return of his writ must be signed by him, but they are competent to go to the jury where the question is as to the amount of payments actually made. The court' ought, in this case, to have so submitted them. So were the receipts of 28th September and 3d October evidence for the jury. Given by the sheriff in the lifetime of the execution, and whilst it was still in his hands, they, like the endorsements on the writ, were evidence against him, and because competent as against him, competent *207also against his principal, the plaintiff; but if they were duplicates for the same, money noted on the back of the writ, they and the endorsements were not both to be credited to the defendant, else he would get the benefit of two dollars-for every one paid.
The court set up a conclusive presumption that the receipts and endorsements were- for the same money. This was the error. It was a pure- question of fact, and as such, should not have been withdrawn from the-jury. Neither separately, nor in the aggregate, do the receipts correspond' with the endorsements, but the small difference between the aggregates, (five dollars only), might lead a jury to the presumption of fact that both pieces of evidence pointed to the same and not to different sums of money. The defendant was entitled to credit for all the moneys paid to the sheriff before the return day of the writ, and it should have been referred to the jury to say from the evidence what these moneys amounted to.
As to the moneys paid to the sheriff a^ter the return day of the writ, and after he was out of office, the judgment of the court was right. It was indeed competent for the defendant to send payments by an ex-sheriff, and they would have been good if the plaintiff had received them, knowing that they had been so sent; hut there was no evidence of such knowledge. After he was out of office, the sheriff was no longer the agent of the plaintiff, and payments to him were as if they had not been made, unless they were actually paid over. But if a sheriff receives money from a defendant both before and after the return day and the expiration of his term, and then in settlement with the plaintiff pays over less than was received in the lifetime of the execution — the plaintiff having no knowledge of the subsequent payments — the defendant has no right to claim that what the ex-sheriff paid over were the subsequent payments, and thus get credit for both them and the prior payments. This we understand to have been the doctrine affirmed in the second point ruled by the court, and.we approve of it.
Unless the county’s officers knew that the money paid over by the ex-sheriff was that which he had received after he was out of office, they had a right to apply it to the sheriff’s prior receipts which would ’ bind them, and the defendant would be entitled in this proceeding only to a credit for the balance of such prior receipts.
The judgment is reversed and a venire de novo awarded.