
    William H. Haralson vs. Nevil Holcombe et al.
    A motion to erase a credit on an execution, made more than five years after the indorsement of the credit and the return of the execution, cannot prevail ; the plaintiff in the execution is presumed to have known of the return, and from the lapse of time without objecting to it, he will be presumed to have acquiesced in it.
    It seems that if urged in due time, it would be good ground to set aside the entry of satisfaction on an execution, that the money was paid after the return day of the execution ; yet such payment is capable of confirmation, and long acquiescence must have the same effect.
    Tn error from the circuit court of Rankin county; Hon. John H. Ro lins, judge.
    At the June term of the Rankin circuit court, 1843, William H. Haralson moved the court to erase a credit of J$800 entered by the sheriff of Rat kin county, on the 4th day of May, 1838, upon an execution in his favor against Nevil Holcombe and others, which issued from the said circuit court on the 20th day of January, 1838, and was returnable on the 3d Monday of April, 1838.
    The circuit court, on hearing, overruled the motifen, and the plaintiff excepted, and in his bill of exceptions is contained the evidence on the trial of the motion.
    The plaintiff read to the court the fieri faeias, on which the credit was indorsed, returnable on the 3d Monday of April, 1838, and a forthcoming bond taken from the defendants in execution, which was forfeited on the return day thereof; and also read the return of the sheriff, giving the credit in the following words and figures, viz. “Received eight hundred dollars on account of this fi. fa., May 4th, 1838. W. P. Coleman, sheriff; ” — and the following further return ; “ Revied on fivp negroes, to wit, Henry, John, Ann, Mary and Elvira, and bond taken with H. Holcombe and Daniel D. Holcombe, security, — W. P. Coleman, sheriff, by W. R. Parker, D. S.”
    The defendants read in evidence an execution on the forfeited bond, returnable on the 3d Monday of October, 1838, which issued on the 15th June, 1838, with the following memorandum, indorsed on the same: “ This execution is entitled to a credit
    of eight hundred dollars, paid 4th May, 1838, as per indorsement of the sheriff on the first fi. fa. issued — Teste, Hugh L. French, clerk.” The defendants “ also read a receipt by Rives and Hughes, attorneys of record, in the following words, to wit: “ Received on this execution one hundred and thirty-three dollars forty-eight cents. — October 18th, 1838. — Rives and Hughes, for plaintiff.” This receipt was entered on the sheriffs docket, where said execution was docketed, immediately under the words, “Received |j800 on account of this Ji. fa., 4th May, 1838,” which memorandum was not signed by any person; —and this was all the evidence on the trial of the motion.
    The plaintiff also moved the court to allow the sheriff to amend his return on the execution, on which the credit was indorsed, according to the truth of the case. This motion was disallowed.
    The plaintiff sued out this writ of error.
    
      Harper and Swann, for plaintiff in error.
    The receipt of the eight hundred dollars by the sheriff of Rankin county, on the 4th May, 1838, indorsed on the fi. fa., returnable to the 3d Monday of April previous, which was satisfied by the forfeiture of a forthcoming bond to that term, was clearly unauthorized, and void as to the plaintiff. Without an operative execution in his hands at the time, no receipt by the sheriff could bind the plaintiff; the record shows that on the 4th May, 1838, no such execution was in the officer’s hands. Planters Bank v. Scott, 5 How. 246; McFarland v. Wilson, 2 S. &. M. 269.
    
      C. R. Clifton, for defendant in error.
    1. The lapse of five years from the entry of the credit to the motion to erase it, is conclusive agaiiist the motion. Prewelt v. Standifer, 8 S. & M. 493.
    2. The reception of part of the money by the attorney of the plaintiff, was a ratification of the whole payment.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a motion to erase a credit from an execution, made more than five years after the indorsement of the credit, and the return of the execution. A new execution was issued for the balance due on the judgment, which was returned satisfied twelve months after the return now sought to be expunged.

In the case of Prewitt v. Standifer, 8 S. & M. 493, it was held, that after an^acquiescence of six years, unless the delay was satisfactorily explained, the plaintiff would be considered as bound by a return of satisfaction, upon an execution. It was said the plaintiff must be presumed to have known of the return, and he ought at once to have disclaimed the act, if he did not intend to be bound by it.

In this case a similar presumption would arise. The delay has been so great, that if the payment were set aside, the defendant in the execution would probably be barred of an action on the official bond of the sheriff against his sureties for the amount so paid to him. Five years form the limitation to such actions. H. & H. 570, § 97.

The ground on which the motion was made, appears to have been, that the money was paid after the return day of the execution. That would have been good cause, if application had been made in due time. But such an act is capable of confirmation, and long acquiescence must have the same effect. See Anketell v. Torrey, 7 S. & M. 474; 2 How. S. C. R. 258.

If leave had been granted to the sheriff, at the time the motion was tried to amend his return, such amendment could not have explained away the acquiescence. It must have been confined to the facts which transpired anterior to the return. This makes it unnecessary to decide upon the propriety of refusing the application for leave to amend.

Judgment affirmed.  