goods under a fi. fa., the defendant afterwards paid the debt, costs, and poundage, the sheriff insisting on the latter; and having commenced an action against the sheriff for extortion, ruled him to return the writ. It being resisted, on the ground that the defendant had no right to rule him, the court said: where the plaintiff delivers a writ to the sheriff to be executed, and money is paid to the sheriff by the owner of the goods, the plaintiff is entitled to call on the sheriff for a return of the writ, and the right of the defendant is reciprocal.-7 Taunt. Rep., 5; 2 Maule & Selw., 330. Poundage is here allowed, in such case.

And though the sheriff make no return, an action of debt, account, or assumpsit, will still lie against him, or his executors if money has been levied. (2 Show. Rep., 79, 281.) And in such an action the defendant could plead the statute of limitations; for though until the writ be returned, it is not a matter of record, yet it is founded upon a record and h as a strong relation to it. Tidd, 934; 2 Show. Rep., 79.

But in The People ex rel. Southwick vs. Everest, late sheriff of Essex, (4 Hill. Rep., 71,) held, that though an action against the sheriff for not returning a fi. fa., be barred by the statute of limitations, he may still be proceeded against by attachment, in order to compel a return, (Brockway vs. Wilber, 5 John. Rep., 356 ;) also held that in such case the court will not impose a fine for the benefit of the party instituting the proceeding, but will discharge the sheriff on his returning the fi. fa, and paying costs. In Brockway v. Wilber, (Ibid, 555) when the sheriff was brought up on the attachment he was discharged; it appearing that the fi. fa. was delivered to the deputy fourteen years before, and had absconded and died abroad; and it did not appear what had become of the writ.

The returns commonly made by the sheriff to a fieri facias, are first fieri feci; that he has caused to be made of the defendant's goods and chattels, or of his goods and chattels, lands and tenements, the whole or a part of the debt directed to be levied, which he has ready to be paid to the plaintiff. This return however is usually made by endorsing the word 'satisfied' when the whole

amount has been collected. So if the money has been paid to the plaintiff the return is 'satisfied.'

The sheriff's return of fieri feci, however, furnishes no proof that he has paid the money over to the creditor. The defendant, a judgment creditor, after the bankruptcy of A B, sued out execution. In an action against him for money had and received, an examined copy of the fieri facias, and the sheriffs' return that he had levied the money, were produced in evidence, and upon that the plaintiff rested his case; insisting that it must be presumed that the sheriff had discharged his duty, and therefore that he had paid the money over to the defendant. But Lord Ellenborough, C. J., was of opinion that no such inference could be drawn, and that the plaintiff was bound to shew that money had been paid over, and directed a non suit. On motion to set it aside, the court concurred with the chief justice, saying, the sheriffs return was prima facie evidence that he had levied, but it was certainly no proof that he had paid the money over.-1 Maule & Selw., 599.

Where the sheriff, by mistake, returned to a fieri facias that he had money in his hands, ready to be paid over to the plaintiff, whereas it had been paid over, through the misconduct of his officers to the solicitor of a commission of bankruptcy issued against the defendant (the original debtor) under which commission one of the plaintiffs was appointed assignee, who knew of and did not object to such payment; the court held that this amounted to an assent on the part of such plaintiff to ratify the payment, and consequently that the sheriff was not liable to pay over to the plaintiff the sum which he stated in his return to have received for them.-2 Brod. & King, 77.

When the sheriff on levying an execution deliver the goods to a third person, on his giving a receipt to return them, or pay the amount of the execution, he cannot afterwards take other goods of the defendant in execution; and in such case it is immaterial whether the property originally taken was sufficient to satisfy the execution or not, or that he had been unable to recover any thing on the receipt.-12 John. Rep., 207.

If a levy have been made, but before a sale the sheriff has

been compelled to return the writ, and has been unable to effect a sale before the expiration of the notice, his return will be that he has levied upon goods or real estate of the defendant which remain unsold for want of buyers. (1 Burr. Pra., 304.) In which case the plaintiff may sue out a venditioni exponas, reciting the former writ and return, and commanding the sheriff to expose the goods to sale, and have the moneys arising therefrom in court at the return thereof; (Cowp. Rep. 406,) or if goods are not taken to the value of the whole, the plaintiff may have a venditioni exponas for part, and a fieri facias for the residue in the same writ. And it is said that if a sheriff seize goods to the value he is bound to find buyers. (Tidd, 1060.) But it is not so here.

But, on motion, the court will not direct a specific return, on the ground that the sheriff's officer has wasted the property seized. On motion that a sheriff might be compelled in his return to specify the goods which he had sold under a fieri facias, on the ground that several things had been taken of which he had ordered no account, and wasted the property in a riotous wasteful manner, the court said, we do not commonly interfere unless some criminal act be shewn; the plaintiff's best course is by action, if any misconduct has been experienced in the bailiff.-6 Taunt. Rep., 576; Marsh, 293.

And the court has refused to grant an attachment against the sheriff, because he had returned to a writ of venditioni exponas that part of the goods levied remained in his hands for want of purchasers.-1 Bos. & Pull., 359.

A sheriff having returned a levy under a writ of fieri facias, cannot return to a venditioni exponas, that he has sold the goods, but detains the money for another plaintiff under a prior writ of execution; and the court quashed such return on motion, and would not give the sheriff leave to amend it. (9 Price, 317.) But where a writ of venditioni exponas for goods already taken in execution, with a clause of fieri facias for the residue; the sheriff returned that he had made a certain sum of the goods, but omitted by mistake, to return nulla bona to the fieri facias, the court allowed the sheriff to amend the return, and set aside an at

tachment issued against him for not making it.—1 Marsh. 344 ; Tidd, 1037.

If the sheriff has been unable to find property of the defendant in his bailwick, to satisfy the execution in whole or in part, his return will be nulla bona; or in the language usually adopted, no goods, or chattels, lands or tenements. This return also is proper where the goods, &c., in possession of the defendant are claimed by a third person; but in this case, before such return can be made, the sheriff is bound, if no indemnity be tendered by the creditor, to call a jury and try the title. (8 Cowen, 65; 5 Wendell, 309.) But where the sheriff has been prevented from taking goods of the defendant, by the allowance of a writ of error, which operates as a supersedeas, he should not return nulla bona, but the special fact of a writ of error being sued out.-1 Burr. Pra. 305; Tidd Pra. 761.

A sheriff who levies on property, and returns nulla bona assumes upon himself the responsibility of proving property out of the defendant in the execution, and thus supporting his return.5 Wendell, 309.

If the return of the sheriff be not true, the plaintiff may maintain an action against him for a false return; in which action the sheriff cannot go into circumstantial evidence to impeach the judgment on the ground of collateral fraud. (2 Stark. N. P., 218.) And where the sheriff returns nulla bona, and there is a recovery against him for his false return, that vests no property of the goods in him or the plaintiff, but they remain in the defendant and are liable to a subsequent execution for his debt.-2 Vern. Rep., 239; Black. Rep., 694.

Upon a fi. fa. de bonis intestatoris issued upon a judgment by confession against an administrator, if he do not produce assets, this justifies the sheriff in returning a devastavit.-4 Cowen, 445.

In New York, writs of a fi fa. are made returnable sixty days from the receipt thereof by the sheriff or other officer, to whom the same shall be directed, and may be made returnable before the justices or judges of the court from which the execution issued; without mentioning any particular place where returnable.-Laws, 1840, p. 334, § 24; Ante., 140.

CHAPTER VI.

Capias ad Satisfaciendum.

After what has been said on the subject of arrest, little remains to be added as to the duty of the sheriff in the execution of this writ.

The capias ad satisfaciendum (termed for brevity the ca. sa.) is a judicial writ, issuing out of the court in which the judgment was recovered, directed to the sheriff of the county in which it is issued, or if he be a party, to some person not interested in the suit to be designated by the court, (Tidd, 1067,) commanding him to take the party named in it, if he may be found in his bailwick, so that he may have his body before the justices of the court at the return day, to satisfy the party issuing the writ of the amount of the judgment &c. ; concluding with the usual clause of attestation or teste. (Ibid; 1 Burr. Pra., 308.) If part of the demand has been already levied under a fi. fa., the ca. sa. is only for the residue. And it may be considered a general rule that a capias ad satisfaciendum will lie in all cases where a bailable capias ad respondendum might have been used as the process to bring the defendant before the court.

It was formerly necessary that a party entitled to an execution, should first issue it to the sheriff of the county in which the venue was laid, and on its return, he might have a testatum writ directed to the sheriff of another county. But under the present prac