vent a rescue by removal of the goods for sale, travelling expenses, to save expense, as by appraisement instead of public auction, on account of an adverse claim, or the like) the rule is inflexible :a the poundage he receives being deemed sufficient as a set-off against anything of this kind. He is not entitled to poundage Poundage. without a bona fide levy: by levy is here meant seizure, not seizure and sale; therefore, any compromise between the parties, between seizure and sale, does not affect the right to poundage.c When a sale takes place the measure of poundage is the amount of sale, and not the sum actually paid over to the execution cre- Fees on erditor. If an erroneous writ be delivered to the Sheriff, and roneous he execute it, he shall have his fees. Payment to the Sheriff, or to his bailiff, is a good payment; and the defendant is Payment to Sheriff or thereby discharged from the judgment and all further execu- officer. tion, although the officer do not satisfy the execution creditor ;f but it is no satisfaction of the debt, except for the person Execution whose goods are taken. If the defendant pay or tender the after paydebt before execution, any execution afterwards would be a trespass.h He must raise the posse comitatus, if need be. If any surplus remain in the Sheriff's hands he may keep it until the defendant demand it of him; for he is not bound to search for him.k writ. ment. Posse comi tatus. What to do with sur plus. RETURNS.1 The within-named C. D. hath no goods or chattels in my bailiwick whereof I can cause to be made the sum within-mentioned or any part thereof. The answer of G. A. Esq. High Sheriff. Nulla Bona and Clericus. The within-named C. D. hath no goods or chattels (nor any lay fee) in my bailiwick whereof I can cause to be made the sum within-mentioned, or any part a Slater v. Hames, 7 M. & W. 413; Davies v. Edmonds, 1 D. & L. 396; Phillips v. Canterbury, 11 M. & W. 621; Bayley v. Potts, 8 Ad. & E. 272. b Colls v. Coates, 11 Ad. & E. 826; Brun v. Hutchinson, 2 D. & L. 45. c Alchin v. Wells, 5 T. R. 470: and see Graham v. Grill, 2 M. & S. 294; Colls v. Coates, suprà; Chapman v. Bowlby, 8 M. & W. 250. d Davies v. Edmonds, 1 D. & L. 396. e Earle v. Plummer, 1 Salk. 332; Bullen v. Ansley, 6 Esp. 111; Rawstorne v. Wilkinson, 4 M. & S. 250. f Woods v. Finnis, 7 Exch. 370; Gregory v. Sloman, 1 E. & B. 368; Wilbraham v. Snow, 2 Wms. Saund. 8 Ib.; and Dyke v. Mercer, 2 Show, Gregory v. Sloman, suprà. * Wooddye v. Coles, Noy, 59; 3 Salk. 1 Nil habet is a good return, without saying nec habuit post receptionem brevis, or nec habuit die quo, &c., for that shall be intended. Dalt. ch. 36. When the return is in a convenient form it is indorsed on the writ itself; when not, these words are indorsed:- "The execution of this writ appears in the schedule hereunto an thereof; and I do further certify and return that the said G. T. is a beneficed clerk that is to say rector of the rectory [or "vicar of the vicarage"] and parish church of M. in the county of W. and diocese of Ca The answer of G. A. Esq. High Sheriff. Nulla Bona Testatoris nec Propria. The within-named C. D. has no goods or chattels which were of the withinnamed E. F. at the time of his death in his hands to be administered in my bailiwick whereof I can cause to be made the sum within-mentioned or any part thereof; and he has not any of his own proper goods or chattels in my bailiwick whereof I can cause to be made the within-mentioned sum of £- parcel &c. or any part thereof according to the exigency of this writ. The answer of G. A. Esq. High Sheriff. The same with a Devastavit. The within-named C. D. has no goods or chattels &c. [as before *] but I do further certify and return that divers goods and chattels which were of the said E. F. at the time of his death to the value of the sum within-mentioned after the death of the said E. F. came to the hands of the said C. D. to be administered which said goods and chattels the said C. D. hath before the coming of this writ to me directed eloigned wasted and converted to his own use. The answer of G. A. Esq. High Sheriff. Fieri Feci. By virtue of this writ to me directed and delivered I have caused to be made of the goods and chattels of the within-named C. D. the sum within-mentioned which I have ready at the time and place within-mentioned to be rendered to the withinnamed A. B. as within I am commanded. The answer of G. A. Esq. High Sheriff. Fieri Feci as to Part and Nulla Bona as to Residue. By virtue of this writ to me directed and delivered I have caused to be levied of the goods and chattels of the within-named C. D. the sum of £ which I nexed," and the return itself is engrossed on a distinct panel. Nulla bona is the proper return when the person named in the writ has no property, either in fact or law, liable to be seized, Shattock v. Carden, 6 Exch. 725. It is also the proper return to a 2nd or subsequent writ, when the proceeds have been exhausted by a landlord's claim for rent, or by a writ or writs with priority, Drewe v. Lainson, 11 Ad. & E. 538; Wintle v. Freeman, ib. 539; Heenan v. Evans, 1 Dowl. N. C. 204. In Smallcombe v. Olivier, 13 M. & W. 91, between the delivery and return of the writ, the Court of Review had ordered that a fiat should be annulled if the L. Chancellor should think fit so to direct; the Sheriff returned nulla bona; and after this return the L. Chancellor made an order for annulling the fiat; it was held a good return. It would seem It also to be the correct return where the defendant's goods are in a place where the Sheriff cannot execute the writ, as in Buckingham Palace and the like, Winter v. Miles, 10 East. 577. would also seem a good return where the landlord claims his rent and the execution creditor (upon notice) refuses to pay it, Cocker v. Musgrove, 9 Q. B. 234. The Sheriff must return that there are goods, or that there are none, bona aut nulla bona, and no difficulties will excuse him, Munk v. Cass, 9 Dowl. 332. Bromage v. Vaughan, 7 Exch. 224. a have ready at the time and place within-mentioned to be rendered to the within A. B. in part satisfaction of his claim. And I do further certify and return that the said C. D. hath no goods or chattels within my bailiwick whereof I can cause to be made the residue of the said sum or any part thereof, as within I am commanded. The answer of G. A. Esq. High Sheriff. Fieri Feci and payments to Landlord and others.a By virtue of this writ to me directed and delivered I have caused to be made of the goods and chattels of the within-named C. D. the sum of £part whereof viz. £ I have paid to Sir G. M. Baronet the landlord of the premises whereon the said goods and chattels were seized for rent due to him for the said premises at last [£ other part thereof to one J. B. which I was commanded to levy for him of the said C. D.'s goods and chattels within my bailiwick by a writ of fi. fa. delivered to me before the delivery of the one at the suit of the said A. B. to wit on the day of A.D. 18-£- -other part thereof to one X. Y. which I was commanded to levy for him of the said C. D.'s goods and chattels within my bailiwick by a certain other writ of fi. fa. delivered to me before the delivery of the one at the suit of the said A. B. to wit on the day of A.D. 18-£further part thereof I have paid to E. F. for Queen's taxes due and owing to her Majesty from the said C. D. for and in respect of the said premises] and £further part thereof I have retained for poundage and expenses and £ residue thereof I have ready at the time and place within-mentioned to render to the said A. B. in part satisfaction of his said debt and interest: And I do hereby further certify and return that the said C. D. hath no goods or chattels in my bailiwick whereof I can cause to be made the residue of the said sum or any part thereof as within I am commanded. The answer of G. A. Esq. High Sheriff. Fieri Feci, and that the goods remain in his hands for want of Buyers.b By virtue of this writ to me directed and delivered I have taken goods and chattels of the within-named C. D. to the value of £- b which remain in my hands for want of buyers therefore I cannot have the money or any part thereof at the time and place within contained as I am within commanded. The answer of G. A. Esq. High Sheriff. When part has been sold and the rest remain in hand, &c. By virtue of this writ to me directed and delivered I have taken goods and chattels of the within-named C. D. to the value of £ within-mentioned and have sold thereof to the value of £ which money I have ready at the time and place within contained but the residue of the said goods and chattels remain in my hands for want of buyers. The answer of G. A. Esq. High Sheriff. Fieri Feci on Goods for part and Money and Bank Notes for residue. By virtue of this writ to me directed I have caused to be made of the goods and chattels of the within named C. D. the sum of £- which money I have ready a Cocker v. Musgrove, 9 Q. B. 234. b This is not a discharge of the command of the writ, but only an excuse that he has not the money, Clerk v. Withers, 6 Mod. 299. He must return some value (value unknown will not do); but he must be very careful, because although not estopped or bound by the precise value set upon them, the return will be prima facie evidence against him afterwards, Barton v. Gill, 12 M. & W. 315; Wintle v. Chetwynd, 7 Dowl. 554; Chambers v. Coleman, 9 ib. 594; formerly he seemed bound by his return, see Clerk v. Withers, in this respect. at the time and place within contained to render to the said A. B. in part of the sum within mentioned: And I further certify and return that I have taken the sum of £ in money and a certain bank note for the payment of the sum of £ [or "divers bank notes for the payment of divers sums of money amounting to the sum of £—”] which money and bank note [or "bank notes"] I have paid and delivered to the said A. B. for the residue of the sum within-mentioned according to the form of the statute in such case made and provided.a The answer of G. A. Esq. High Sheriff. Where Bills of Exchange, &c. are taken. 66 By virtue of this writ to me directed I have caused to be made of the goods and chattels of the within-named C. D. the sum of £ which money I have ready at the time and place within contained to render to the said A. B. in part of the sum within-mentioned: And I further certify and return that I have seized and taken a certain bill of exchange for the payment of the sum of £- [or "cheque," or a certain promissory note for the payment of the sum of £ or "a certain bond conditioned for the payment of the sum of £ and interest" a certain specialty containing a covenant for the payment of the sum of £as the case may be] belonging to the within-named C. D. which said bill &c. [as the case may be] I hold as a security for the amount of the residue of the said sum in the said writ mentioned according to the form of the statute in such case made and provided.a The answer of G. A. Esq. High Sheriff. Withdrawal of Writ. day of or 99 66 I do hereby certify and return that after the coming of this writ to me directed that is to say on the A.D. I was commanded by the withinnamed A. B. [or "by one E. F. the attorney of the within-named A. B."] to forbear [or "suspend "] the execution thereof and have forbore [or “suspended "] the execution thereof accordingly. Mandavi Ballivo, &c. The answer &c. By virtue of this writ to me directed I made my mandate to the bailiff of of his liberty of who hath the execution and return of all writs and process within the said liberty and without whom no execution of this writ could be made by me within the same which said bailiff hath not given me any answer thereto [or "hath answered me thus that by virtue of my said mandate to him thereupon directed he hath caused to be made of the goods and chattels of the within-named C. D. the sum within mentioned and that he hath that money ready at the time and place within contained as by my said mandate he was commanded"]. The answer of G. A. Esq. High Sheriff. Bill of Sale from Sheriff. To all to whom these presents shall come greeting: Whereas by virtue of her Majesty's writ of fieri facias issued out of the Court of at W. to me directed and delivered I was commanded to make £- [as in writ] of the goods and chattels of G. T. which A. B. in the said court hath recovered against him as by the said writ more fully and at large appears: By virtue whereof I G. A. High Sheriff of the county of W. have taken into my hands the following goods and chattels [here set them out] of the said G. T. of the value of £ -: And whereas the said a See ante, p. 174. b Hunt v. Hooper, 1 D. & L. 626: and see Howard v. Cauty, 2 ib. 117; Barker v. St. Quintin, 1 ib. 542; Levi : A. B. hath agreed to purchase and hath purchased the same for the sum of £Now know ye that I the said G. A. for and in consideration of the sum of £to me in hand well and truly paid by the said A. B. the receipt whereof I do hereby acknowledge do hereby as much as in me lieth by virtue of my said office fully and absolutely bargain sell and deliver to the said A. B. his executors administrators and assigns the said goods and chattels to have hold and enjoy the same as his her and their own proper goods and chattels for ever. In witness whereof I have hereunto set my hand and seal the day of Signed sealed and delivered A.D. in the presence of me G. A. Bond of Indemnity for Selling. - J. B. of and R. P. Know all men by these presents that we A. B. of of are held and firmly bound to G. A. Esq. High Sheriff of the county of W. in the penal sum of £- · [double the sum indorsed on the writ] of good and lawful money of Great Britain to be paid to the said Sheriff or his certain attorney executors administrators or assigns for which payment to be well and faithfully made we bind ourselves and every one of us by himself for the whole and every part thereof and the heirs executors and administrators of us and every of us firmly by these presents. Sealed with our seals. Dated this day of A.D. Whereas the above-named G. A. as High Sheriff of the county of W. by virtue of her Majesty's writ of fieri facias to him directed and delivered against the goods and chattels of G. T. issued at the suit of the said A. B. out of H. M. Court of at W. and there returnable immediately after the execution thereof hath seized and taken divers goods and chattels in execution; and whereas since the seizing and taking of the said goods and chattels in execution as aforesaid the same have been claimed by one J. C. who hath given notice to the said Sheriff not to proceed to a sale of the said goods and chattels; and whereas the said A. B. hath applied to the said Sheriff and requested him to sell the said goods and chattels so seized as aforesaid and to pay to the said A. B. the money arising from the sale thereof which the said Sheriff has consented to upon being indemnified for so doing: Now the condition of the above-written obligation is such that if the above-bounden A. B., J. B. and R. P. their heirs executors or administrators do and shall from time to time and at all times hereafter well and sufficiently save harmless and keep indemnified the said Sheriff his Under-sheriff deputy and officers and each and every of them of from and against all losses costs charges damages and expenses which he or they shall or may sustain suffer bear pay expend or be put unto for or by reason or means of selling the said goods and chattels so seized and taken in execution as aforesaid; and also of from and against all action and actions suit and suits or any proceeding or proceedings at law or equity which now are or shall or may at any time or times hereafter be brought commenced or prosecuted rightfully or wrongfully against the said Sheriff his Under-sheriff deputy and officers or any or either of them for or by reason or means of the selling the said goods and chattels or for or by reason or means of any other matter or thing whatsoever relating thereto then the abovewritten obligation to be void otherwise to stand and remain in full force vigour and effect. Signed sealed and delivered in the presence of me Condition of Bond for withdrawing. A. B. J. B. R. P. Whereas the above-named G. A. as High Sheriff of the county of W. by virtue of her Majesty's writ of fieri facias to him directed and delivered against the goods and chattels of G. T. issued at the suit of A. B. out of H. M. Court of at W. and there returnable immediately after the execution thereof hath seized and taken divers goods and chattels in execution; and whereas since the seizing and taking of the said goods and chattels in execution as aforesaid the same have been claimed by one J. C. who hath given notice to the said Sheriff not to proceed to a sale of them; |