
    CROW vs. HUDSON.
    1. Iu assumpsit to recover the proceeds of a note placed by plaintiff in defendant’s hands for collection, on which defendant brought suit, for his own use, in the name of the payee, and recovered judgment, whereon execution was issued, and levied on certain bales of cotton, which were purchased at sheriff’s sale by defendant, the return of the sheriff on the execution is not conclusive against the plaintiff, as to the amount of the proceeds of the sale.
    ERROR to the Circuit Court of Benton.
    Tried before the Hon. L. P. Walker.
    
      Assumpsit by Crow against Hudson, to recover tbe proceeds of a note on one "Williams, wbicb plaintiff bad placed in defendant’s bands for collection. Tbe defendant’s receipt for tbe note was read in evidence on tbe trial, by wbicb be promised to account for tbe note when tbe plaintiff paid bim $300. It was shown, that tbe defendant recovered a judgment on tbe note, in tbe County Court of Benton, in tbe name of tbe payee, for tbe use of bimself; that an execution was issued on this judgment, wbicb was levied on eighteen bales of cotton ; that said cotton was sold by tbe sheriff, under said execution, and was bid off by tbe defendant, some at 6| cents per pound, and tbe rest at 5£ cents; that tbe cotton, at tbe time of tbe sale, weighed about 450 lbs. per bale, at which weight tbe proceeds of sale would have amounted to $479 25; and that the sheriff, in settling with tbe defendant, and in making bis return, estimated the cotton at tbe weight put upon it by tbe commission merchants in Wetumpka, thus making tbe proceeds only amount to $319 77.
    Tbe court charged tbe jury, that tbe sheriff’s return on tbe execution was conclusive, in this suit, and between these parties, as to tbe amount for wbicb tbe cotton was sold at tbe execution sale. Tbe plaintiff excepted to this charge, and be now assigns it for error.
    "White & Parsons, for plaintiff in error:
    Tbe charge of tbe court is erroneous. Crow is not concluded by the sheriff’s return on tbe execution, because be is not a party to it, nor to tbe record. At most, tbe return is but a record, and strangers are not estopped by a record. St. John v. O’Connell, 7 Porter, 476, and cases there cited; Blann v. Cbambless, 9 ib. 412. As to who are parties, see 1 Green-leaf on Evidence, §§ 523 to 528.
    J. B. MARTIN, contra:
    
    1. Tbe return of a sheriff cannot be impeached collaterally. He is a sworn public officer, to whom tbe law gives credit. Crafts v. Dexter, 8 Ala. 767; Clark v. Garey, 11 ib. 98; Governor, use &c. v. Bancroft, 16 ib. 605.
    2. Crow, in this action, claims under tbe judgment and execution. Hudson, Crow’s agent, bad tbe right to rely upon tbe sheriff’s return, as showing the true amount for which the cotton sold; and, if that return is false, Crow has his remedy directly against the sheriff, but he cannot be allowed to falsify his return, for the purpose of charging Hudson. Phil, on Ev. C. & H.’s Notes, 1087-8; 4 Ohio R. 155; Bean v. Parker, 17 Mass. 591; 1 Litt. 16; 18 "Vermont, 67; 6 N. Hamp. 393.
    Did not Crow and Hudson sustain to each other the relation of bailor and bailee ? and if so, are they not concluded by the same evidence ? See Hare v. Puller, 7 Ala. 717, and cases there cited.
   GOLDTHWAITE, J.

— -The only question in this case is, whether, on the trial' below, the return of the sheriff of the amount brought by the sale of the cotton levied on, was conclusive evidence of that fact, as to the plaintiff in error. Giving to the return the force of a record, the rule is, that it would bind only parties and privies. The plaintiff in error was not a party to the proceeding; and it is only necessary, therefore, to determine whether he was a privy, within the meaning and operation of the rule.

Privity denotes mutual or successive relationship to the same rights, 1 Green. Ev. § 523; and, as to the defendant in the original suit, who was the maker of the note, in any judgment or proceeding in such suit, the interest of the plaintiff in error would have been identical with that of the party to whom the transfer of the note was made; and for that reason, the maker of the note could regard him as a privjr in such proceeding. But, as to the plaintiff in such suit, he does not occupy the same position, and, so far as he is concerned, is not to be regarded as a privy. Their identity of interest is confined to the proceeding against the maker of the note. A party is not allowed to build up an estoppel in his own favor; and an assignor is not bound, in a suit against him by the assignee, bj^ a judgment in favor of the maker, ascertaining the fact of payment previous to the assignment, unless the assignor had due notice of the first action, and an opportunity to defend it. Maupin v. Compton, 3 Bibb’s R. 214.

Upon analogous principles, the plaintiff in error was not bound by the return of the sheriff, on the execution issued on tbe judgment in favor of tbe defendant in error against the maker of the note, St. John v. O’Connell, 7 Porter, 476; and the charge of the court, that such return was conclusive, was erroneous.

Por this error, the judgment is reversed, and the cause remanded.  