
    Commissioners of the Treasury against John C. Allen.
    saflst“aacsi™rifn vT/moneys^that “I ¿“Sr Xift“ie a¿plied in payment tbVwaftgSí ritus’hamis, and" that it had loen so wpiied.
    This was an action of debt on the defendant’s bond, as Sheriff of- district, to which the defendant pleaded performance of condition, and the plaintiff, by his replication, assigned as a breach, among other things, that defendant had, . . - . , as Sheriff of the said district, made or levied a large sum of money on a writ of fieri facias, issued * , _ „ *1 , „ from the Court oi Common rleas, in the case oí E. Holm,an, as guardian of - — -, an infant, against John and B. Martin, which he had not paid over to the said E. Holman, on which issue was taken.
    On the part of the defendant, parol evidence was offered to prove that Holman, the plaintiff in the execution, had given verbal orders to the defendant to apply the moneys made by him on this execution to the satisfaction of an execution then in his office against him, at the suit of a third person, and that in pursuance of his orders the money had been so applied, and it was also offered to be proven that the said Holman had frequently acknowledged that the money made on the execution, for the non-payment of which the breach is assigned, so far as related to himself, was fully satisfied and discharged. The presiding Judge was of opinion that this evidence was inadmissible as it was not in writing, and there-lore rejected it, and the Jury found a verdict for the plaintiff. *
    ad^™¡bfjt‘o”eí S’Jpt “NS ■written" evidence S^e<luired
    , . . ~. A motion is now made to set aside the verdict, and for a new trial, on the ground that parol evidence of the facts offered to be proven was admissible, and ought not to have been rejected.
   The opinion of the Court was delivered by

Mr. justice Johnson.

There can be no question that parol evidencé is admissible to establish any fact, except when " * written evidence is expressly required by law; such, for instance, as the cases within the statute of frauds. Is there, then, any law requiring that a Sheriff shall adduce written evidence of the payment over of moneys received by him to the person entitled to receive it? It surely does not fall within any of the provisions of the statute frauds; and there is no law in existence that comes within my knowledge, which does require it, although it is desirable that a Sheriff, particularly for his own security, should be furnished with more lasting evidence of transactions so important to himself, than the frail and perishable materials which constitute parol proof;, but I am wholly unable to distinguish this ease from that which eyery day occurs, and is admitted, of proving by parol the discharge or payment of debts.

If I understand the report of this case correctly, the opinion of the presiding Judge was inflaenced by a supposition that there was a combiJ rr nation between the defendant and Holman to prevent the proceeds oí this execution irom tailing into the hands of the ward of the latter, and that the dispute was not between Holman and the defendant, but between the defendant and the ward, who had come of age. I am not prepared to say that the Court would not be justified, under very peculiar circumstances, in laying hold of the money while in the hands of the Sheriff; but if he had once paid it over to the guardian, or to his order, as in this case, there can be no question that he would be justified: while he was the guardian, he alone was entitled to receive it. At any rate, I think the evidence offered ought to have been admitted, and it is time enough to decide what influence it ought to have, when it comes regularly before the Court.

I am of opinion that the verdict ought to be set aside, and a new trial granted.

Golcocky Nott, and Chevesf J. concurred.  