object to the confirmation of the sale by the court can not complain of the sale nor resist payment of the purchasemoney; nor deny the validity of an incumbrance if the sale. is made subject to it; or where a purchaser is informed, by the attorney of a party interested, that the property will be sold free from such party's claims, he can not afterwards levy on the property, and the officer levying is a trespasser. But where the writ is void, and confers no power whatever upon the officer, there is no estoppel. Filing a bill of injunction waives any irregularity. Where a vendor selling property brings suit to recover the purchase-money, and recovers a judgment for the amount due, issues execution and causes a levy and sale to be made of the property, the officer sells it free from any claim of his for the purchase-money, he elects to sell just such a title as his purchaser would have obtained from him had he complied with his contract of purchase. Having thus made his election to sell the property he is bound by it."

8231. HOW THE QUANTITY SOLD IS ASCERTAINED. There is a difference between the sale of the property itself and an interest therein, in the sale of the property it is purchased with all its legal incidents, in the sale of the defendant's interest only the interest that the debtor could enforce passes by the sale.' In order that the quantity of land which passes to a purchaser at an execution sale may be ascertained, reference must be had to levy; the extent of the levy is the quantity; when the return is intelligible, and ascertains with reasonable precision the tract taken, no evidence in contradiction is admissible, the construction of the return and the

quantity of land passing by the sale is to be determined exclusively by the court.' Where a tract of land contains more land than the parties suppose it does, the purchaser will be compelled to pay for the surplus at the same rate per acre as for that purchased in gross, or upon refusal, the court will say at which side or end of it the surplus may be laid off."

PRACTICE IN INDIANA.

After offering the rents and profits, and upon failure to sell the same, the officer may then sell the fee simple in order to realize the amount necessary to satisfy the execution.'

SALES OF REAL ESTATE ON JUDGMENTS OF JUSTICES OF THE PEACE. In regard to sales made upon judgments rendered in courts held by justices of the peace, the general rule is to file an abstract of the judgment or a transcript or record of the proceedings in an appellate court or court of general jurisdiction, and cause a general execution to issue from such court, in the same manner as though the judgment had been rendered by such court.'

Having traced the proceedings on execution from the issue thereof, the levy and the sale, the next and final proceeding thereon is its return, which will be treated of in the succeeding chapter.

1 Hoffman v. Danner, 14 Penn. 25. Horn v. Denton, 2 Sneed. 125. Dawson v. Goodwin, 15 B. Monr. 439.

Piel v. Watson, 44 Ind. 447. Ind. &c. Co. v. Bradley, 15 Id. 23. Law v. Smith, 4 Id. 56. Thurston v.

Barnes, 10 Id. 239. Brownfield v.
Wright, 9 Id. 394. Davis v. Campbell,
12 Id. 192. Adler v. Sewell, 29 Id. 598.
Stanley v. Nelson, 4 Humph. 484.
Hall v. Heffly, 6 Id.

4

v. Buck, 22 Wis. 577.
Wickware, 19 Cal. 145.

444. Smith

Campbell v.

CHAPTER XIII.

OF THE RETURN.

Who to make

What a Return is. - Return day. - Returns to Writs of Execution. -When an Execution is Returnable. a Return. What a Return should state. What is a sufficient Return. - Insufficient Returns. How a Return should be construed. — Nulla Bona, when a proper Return. - False Return. - Return as Evidence of proceedings. Conclusiveness of Return.-When not conclusive. When it may be contradicted by the officer. When and where it is prima facie evidence.- Of the Date of the Return. - Lost Return. When a Return will be quashed. - Amendment of Return. When allowed. When not. Effect of amendment.

$232. OF THE RETURN. of final process, and the collection of the amount due thereon, or a failure to find property out of which to make the amount of the judgment, the next and last step is the return of the writ to the court from whence it issued. Executions, after stating the parties, the amount and recovery of judgment, and mandate to the officer to collect the amount therein specified, also command the officer to have the writ itself in court on a certain day.

After the issue and execution

On that day the execution is said to be returnable, and it is called the return day of the writ. It is the day when the officer is required to make his return to the court. On the return day, the officer is to file or deposit the execution with the court or the clerk thereof with his return, that is, a short account in writing, made by the sheriff or other ministerial officer, of

1 Bank v. Tome, I Speers, 501.

the manner in which he has executed the writ.' It is the officer's answer touching the service of the execution of such final process. It is usually made in the form of a certificate, and is indorsed on the writ, process or paper; it must be signed by the officer making the return, and is that only to which he signs his name when he returns the writ.'

A return may be considered as the certificate of the officer, to whom any process is directed, stating what he has done in obedier.ce to the commands therein given, or the reason of his neglect in not fulfilling them, and is a material part of his duty; as the return should be both in form and substance, according to law, otherwise the officer may be subjected to punishment, and the party employing him to damages. All that the officer is commanded by the writ to do, he must perform, and no more, or show a sufficient reason for his neglect; and make return of his precept to the proper court on or before the day mentioned in it for its return. The return must always be attested by the officer, and must be certain to every intent. A return by the deputy, in his own name, as deputy, is not a return by the officer. It is not, in pursuance of the statute, a return by the officer to whom the writ was directed. When a man acts in contemplation of law, by the authority and in the name of another, if he does an act in his own name, although alleged to be done by him as attorney, it is void.

Whatever proceedings are had on the writ must be accurately returned by the officer; and with respect to the return of judicial process, in general, it has always been regarded that all writs of execution to be executed by the sole authority of the officer, such as a capias ad satisfaciendum, habere facias possessionem, &c., are good when duly executed, but never returned, by the officer; for the plaintiff has the effect of his suit. But if a party apprehends himself to be injured he may apply to the officer to return such writ, and if the officer refuses an action lies against him. At common law an action did not lie against the officer. The practice Windle v. Ricardo, 1 B. & B. 17.

1 State v. Melton, 8 Mo. 417.

was to compel a return, and if that was false the party had his remedy on that; or the officer may be ruled to return. an execution, and a defendant as well as a plaintiff may rule the officer to return a writ. Until the return is delivered to the proper officer or court it is not complete.' It is necessary to file it in order to complete it. Filing it in the clerk's office constitutes the return in law. It can not be said to be filed until it reaches its place of final deposit; and until actually filed in the clerk's office it does not actually become a matter of record. Where a writ is required to be returned within a specified time, any time within or at the end of such time is meant.' Where a due return of process is necessary, it is a proper return made in proper time."

$233. RETURNS TO AN EXECUTION. The returns commonly made to an execution are the following: When the officer has failed to discover any property whatever belonging to the defendant liable to levy and sale, he returns that fact in the common formula "nulla bona," or after diligent search in my county or bailiwick, I am unable to find any goods, chattels, or other property of the defendant on which to levy or satisfy the within execution. When he causes to be made out of the defendant's property, the whole or any part of the money, which he is ready to pay, or has paid, to the plaintiff, he returns fieri feci, "I have caused to be made." The name fieri feci is given to the return to the writ of execution where the officer has collected the whole or part of the sum directed to be levied.

When the officer makes this return a rule may be obtained upon him after the return day, to pay the money into court.

1 Moreland v. Leigh, I Stark. 388. Commonwealth v. McCoy, 8 Watts, Pardee v. Robinson, 6 Hill,

153.

550.

2 Edmunds v. Watson, 7 Taunt. 5. Richardson v. Trundle, 8 C. B. N. S. 447. Frances v. Clarkson, 2 Dowl. P. C. 532.

3 State v. Melton, 8 Mo. 417.

4 Nelson v. Cook, 19 Ill. 440. Garlick v. Sangster, 9 Bing. 46 Rex v. Wade, 1 B. & A. 861. White v. Willard, I Watts, 42. Fager v. Campbell, 5 Id. 288.

Welsh v. Joy, 13 Pick. 482. Adams v. Cumiskey, 4 Cush. 420. 8 Waugh v. Brittain, 4 Jones, 470.