The opinion of the court was delivered *>y
McIver, A. J.E. M. Kirkpatrick, as administrator of the McKelvey’s, recovered a judgment against the defendants for a large sum of money, and on May 29th, 1873, gave to the defendants a receipt acknowledging the payment “by them of $6000 in full of the balance of the debt and interest in this case,” a memorandum of which was entered on the execution by the sheriff. There are also two other credits entered upon the execution by the sheriff, one dated April 19th, 1873, of $1300, expressed to be “in part of this ease,” and another of $30, dated June 7th, 1873, expressed to be “ in full of this case.” The letters of administration previously granted to’Kirkpatrick having been revoked, and letters of administration de bonis non having been granted to the plaintiff, he brings this action in that capacity. The plaintiff, in his complaint, recognizes the validity of the first credit of $1300, and without taking any notice whatever of the last credit of $30, which, as we have seen, is expressed to be “in full of this ease,” seeks to have the entry of the credit of $6000 vacated and set aside, and the judgment enforced for the balance due thereon, after deducting the' credit of $1300 on April 19th, 1873, upon the ground of a fraudulent collusion between the former administrator, Kirkpatrick, and the defendants.
It appears to us that the plaintiff, in the outset, encounters an insurmountable obstacle which effectually prevents him from maintaining this action. He, as administrator de bonis non, is seeking to set aside a transaction between his predecessor and a debtor of the estate upon the ground of a fraudulent collusion between them. He is not asking that the estate be protected from' a fraud practiced upon his predecessor, the former administrator, but the ground of his complaint is that such preceding administrator himself fraudulently colluded with the debtor to the prejudice of the estate. The case of Johnston v. Lewis, Rice’s Eq. 40, conclusively shows that the plaintiff cannot maintain the action. In that case the plaintiffs, as administrators de bonis non, attempted to set aside a sale of property of their intestate upon the ground that the same was made by a fraudu*160lent collusion between their predecessor, the former administratrix, and the defendant, who was the purchaser at the sale. In the Circuit decree, Johnston, Ch., at pages 42-3, says: “It is true that both creditors and distributees, if defrauded in any manner by the sale, might bring their bill against Lewis and the administratrix, and set it aside for collusion between them. But the administratrix, as such, could never impeach a transaction for a fraud to which she was a party. Then the question is whether these plaintiffs can set the sale aside. They are neither creditors or distributees. This bill is not filed in either of tírese characters. The plaintiffs come forward as successors in office to Mrs. Pickett to unravel transactions' by which she was bound. But nothing seems plainer than that all acts binding upon a predecessor are equally binding upon a successor.” And, Harper, Ch., in delivering the opinion of the Court of Appeals, at page 48, says: “We concur with the Chancellor that the present ■complainants, the administrators de bonis non, stand in the place of the first administratrix, and are bound wherever she could be bound, and concluded by whatever would conclude her. * * * The administratrix, in general, represents all creditors and distributees, and they cannot be heard but through her, and are bound by her acts. Only in the case of a fraudulent collusion to misapply the assets, these may be followed by creditors and distributees themselves, but certainly not by her successors in administration.” In this case there are no creditors or distributees before the court complaining of a waste or misapplication of the assets, and, from what is stated at the bar, it is not likely there ever will be, as it is said that none have been discovered in the quarter of a century which has elapsed since the death of the intestate.
But even were the action maintainable by a person occupying the position of the plaintiff, it must fail, in this instance, for the want of sufficient proof of the allegations upon which it rests. The finding of the jury, approved by the Circuit judge, negatives the fraud charged, and it would require much more testimony than we have been able to discover in the “ case ” submitted here to warrant us in disregarding their concurrent finding.
*161It is contended, however, that as matter of law the payment of a smaller sum at or after the day the debt is due, can never operate as a satisfaction of a greater sum, and that the plaintiff is therefore entitled to enforce the execution for the balance which may be found due after deducting all the amounts credited on the execution. "Without entering at this time into any discussion of the rule of law upon which this position is based, it is sufficient for us to say that it does not apply in the present case, for it ignores the fact that there is another credit upon the execution, subsequent in date to the one under consideration, which the sheriff acknowledges to be “in full." Such a receipt, in the absence of any proof to the contrary, must be given its full force, and amounts to an acknowledgment that the whole amount due has been paid. For, though it may be shown by actual calculation that the amount mentioned in the receipt, added to the other credits endorsed, would not extinguish the whole amount due, yet the acknowledgment that it is in full presupposes that there were other payments, and, until such is shown not to be the fact, it must be given the effect of a receipt in full. Henderson v. Moore, 5 Cranch 11; Trimmier v. Thomson, 10 S. C. 190. The answer made to this by the appellant’s counsel, upon the argument here, that the amount acknowledged by this last mentioned receipt simply represented the sheriff’s commissions on the $6000, rests wholly upon conjecture, and is without any testimony whatever to support it. The receipt does not specify that it was for costs or commissions, and no witness has so testified. It is a mere conjecture, and one too which we are not likely to entertain; but, on the contrary, according to well established principles, we are bo'und to infer that such was not the fact. The rule of law undoubtedly is that, in the absence of any evidence to the contrary, the presumption is that a public officer has done his duty — not that he has violated it. Now, according to the statute in force at the time when the $6000 payment was credited, (act of February 26th, 1873, 15 8tat. 388,) the sheriff was only entitled to one-fourth of one per cent, commissions upon all moneys paid out of his office upon executions lodged in his office; and, therefore, before we could presume that the amount mentioned in the receipt represented the sheriff’s *162commissions upon the $6000, we would have to presume that this officer, in gross violation of his duty, had exacted just twice as much as he was entitled by law to claim, and had thereby rendered himself liable to heavy penalties. Such a presumption, directly opposed as it is to the rule of law above stated, is not permissible.
We do not see how, in any view of the case, the plaintiff can maintain this action, and the judgment of the Circuit Court is therefore affirmed.
Willard, C. J., and McGowan, A. J., concurred.