In an action by a sheriff for property levied on by him his endorsement on the execution is competent evidence to prove the levy.
FROM LENOIR.
After a verdict for the plaintiff the defendant obtained a rule for a new trial, upon the ground that incompetent evidence had been received. But his Honor retaining his original opinion, discharged the rule, and gave judgment upon the verdict, from which the defendant appealed.
HALL, J.
The levy endorsed upon the execution was an official act of the sheriff, and one which it was his duty to make. But it was an act in pais, and the truth of it might be impeached by evidence on the other side. It was the plaintiff's interest to establish a seizure or a levy in fact. But in the absence of such proof the indorsement of a levy, or any legal circumstancial [circumstantial] evidence which tended to the same end, was competent.
PER CURIAM. No Error.
Cited: Miller v. Wowers, 117 N.C. 220.
Dist: S. v. Vick, 25 N.C. 491.
(11)