The opinion of the Court was delivered by

The single question involved in the issue made by the pleadings is to be determined by the weight of the evidence in regard to the satisfaction of the judgment obtained by the respondent, to be paid out of the proceeds of the assignment of W. B. Dunlap to appellant for the benefit of his creditors. We see no error on the part of the Circuit Judge in applying the law to *233the conclusion which he reached on the facts. A levy, if sufficient to cover the amount of the execution, is prima faoie evidence of satisfaction; but the presumption may be rebutted by proof that without fault on the part of the plaintiff it failed to produce it. The Sheriff would be liable if the property levied under the execution had been lost through his neglect, yet he would be allowed to discharge himself by showing that the property did not belong to the defendant, or that it was lost notwithstanding all the care that human foresight could provide for its security. Nor does it follow that a levy is to be regarded as satisfaction because the Sheriff allows it to remain in the possession of the defendant, even though the result of it may be loss, if, by authority of law, he or his bailee is not permitted to enforce it. The execution against Dunlap cannot be held satisfied to any amount by the levy of the two slaves when their sale was prevented by emancipation. This would throw the loss not on the debtor but the creditor, which would be in direct conflict with the principle on which the ruling in Calhoun vs. Calhoun (2 S. C., 283,) proceeded.

On the facts proved the presiding Judge held that neither of the executions claimed through the assignment of the bank to plaintiff had been satisfied. We perceive nothing in the evidence to convince us that there is error in the conclusions which he drew from it. The sale of the land of J. W. McElwee, Jr., under the execution of Steele, was never perfected. No bid was paid, no title executed, and to say that a mere barren ceremony from which no money followed could amount to a satisfaction of it would be a proposition too unjust and unreasonable even for consideration. There is one ground presented by the appellant which, although it may not have escaped the observation of the presiding Judge, has not been noticed in his decree. It, however, deserves consideration. It relies upon the receipt referred to in the testimony of Sheriff Youngblood, executed to him by Messrs. Dawkins and Melton, the attorneys of the bank, for the amount of the execution against J. W. McElwee, Jr., in its favor. Standing by itself it might be conclusive against the bank. A receipt, however, may be explained, and the other circumstances in proof clearly admit of a construction which must necessarily destroy its effect as an acknowledgment of payment. The same witness said that the bank had transmitted a cheek to meet the executions in the office against the same defendant, which were to be left open for its *234benefit. In the statement prepared by him he included the execution which the bank itself held, amounting to $2,449.91. After paying to the plaintiffs in the other cases the sums due on their executions, which were then either assigned to the bank or left open for its use, the Sheriff found remaining in his hands the amount called for by the execution of the bank. Instead of returning it to the attorneys who represented the bank, and specifying in the receipt which they were to give on its acceptance the proper account on which it was paid, the receipt was written as if in payment by the Sheriff of the amount due on the bank judgment. If this receipt can be set up as a bar to the claim of the bank, it would actually lose its whole debt, for the money returned by the Sheriff was its own, and, according to his testimony, was of the proceeds of the check or draft which it had remitted. The witness admits his mistake including the bank case among the eases which he had marked'“assigned” to it. There is no dispute that the bank did recover this judgment, and the explanation so conclusively shows error in the terms of the receipt that it cannot be resisted. In aid of the explanation, this fact is not without signifi canee: That the Sheriff, following the instructions which had been given to him, made no entries on this execution either of payment or other action. The whole purpose intended to be accomplished by the bank, through the loan for the purchase of the other judgments, would have been defeated by the satisfaction of its own execution. If it proposed to do this, it could have been accomplished by a mere entry to that effect. It is not reasonable to suppose that it would have gone through the idle form of paying with one hand and taking it back with the other. After the transaction to which the Sheriff refers, it was .assigned to the plaintiff, and to say that the bank transferred to him a judgment for valuable consideration which, in fact, had been previously paid, is to charge it with an act of dishonesty without the least testimony to sustain such an allegation.

The motion is dismissed.