Opinion by

The debt in this case was not’ paid to the sheriff Bedford until the date of the receipt in October, 1864. No execution was then in the hands of the sheriff, as the proof of 'the clerk shows that none was issued after 1863. This execution had been returned by the sheriff and destroyed by fire with other records in the clerk’s office long before the payment' is alleged to have *244been made. There is no' proof of any levy by the sheriff in 1863, or at any other time, on the property of the defendant in the execution, and as the sheriff had no right to collect the money upon a judgment by virtue of his office, his sureties are not responsible. The variance between the allegations of the petition and the proof as to the parties defendant in the execution is not such an error as would authorize a reversal of the judgment rendered against Bedford. The judgment is affirmed on the original and cross-appeal.