
    R. SIMPSON vs. W. HIATT.
    The Sheriff’s return upon an execution is prima facie evidence of a sale, and as to who was the purchaser.
    Appeal from the Superior Court of Law of Mecklenburg County, at the Spring Term, 1851, his Honor Judge Battle presiding.
    
      Alexander, Craig and Wilson for the plaintiff.
    
      Boyden, Osborne and Hutchinson for the defendant.
   Nash, J.

We are not called on to put any construction upon the will of Henry Cheyne. Believing as we do ihat his Honor erred in his opinion, upon another point, we are constrained to say, that there must be a venire de novo. Setting apart then the question as to the, devise, this case presents the same question as to the competence of the Sheriff’s return upon the venditioni exponas as arose in the case of den on demise of W. H. Simpson v Hiatt, decided at this Term. The facts, so far -as that question arises, are the same. In this case his Honor decided that there was no evidence of the sale by the Sheriff — in this there is error. The Sheriff’s return upon the execution is prima facie evidence of a sale, and. that the plaintiff was the purchaser. For the reasons governing our opinion, we refer to the case of Hiatt, cited above, and the cases there referred to.

Per Curiam. Judgment reversed and venire de novo.  