The opinion of the Court was delivered by
Gibson, C. J.Some of the exceptions to evidence stand on principles which come up again on exceptions to the charge; but as it is equally convenient to dispose of them here, I begin with them. *186Of this number is the exception to proof of payments to the sheriff after return of fieri facias, which, it is said, terminales his authority for the time; and that, in this case, his receipt of the debt was an unofficial act. The goods, however, remain in his custody and power to sell them, notwithstanding; and it is necessary that the debtor be at liberty to redeem them without waiting for a venditioni exponas, which gives the officer no new authority, but compels him to use, at all events, that which he already has. It is text law, that a sheriff may sell on a fieri facias, after the return of his writ.; and it is an inevitable consequence that payment to him is good to charge his sureties and to discharge the debtor. The second exception depends on the same principle.
As to the third, it is certain that a valid return can be made only by.the sheriff himself. By the statute 12 Ed. 2, c. 25, which is in force here, he is commanded to put his name to it, that the court may know whose it is; and therefore a return by the under sheriff is erroneous, though purporting to be in his name. It was at one time doubted whether the statute invalidates the act, the object being supposed no more than the amercement of the officer; and there certainly have been decisions each way; but the weight, of the authorities collected in Dali. 586 is, that the return is vicious. These, however, seem to have respect to mesne process.' The application of the rule to final process, which is not returnable or necessarily the foundation of further judicial action, is not so apparent. Though the return were originally unauthorised, the suffering of it to stand, as in this case, without an application to set it aside, is a ratification of it, according to Andrews v. Linton, 1 Salk. 265, which binds at least the sheriff. Even without this, the declarations of the under sheriff, in the course of the business, would charge his principal; and what else is this invalid return'! For the same reason, his indorsements of payments on certain executions were properly received.
The fifth bill is abandoned; and the sixth is not sustained, the evidence being clearly irrelevant.
Some of the exceptions to the charge are better founded. Under the denomination of costs, the plaintiff was allowed to recover fees not advanced by him. The difference between these was staled in Musser v. Good, which goes nearly the length of the present point. Fees paid at the time of the services are necessarily taxed to the party as costs; but when not advanced—and they are never then included in his bill—they are indorsed on the execution as the property of the respective officers, and received by the sheriff to their use. But it has been ruled that he who ordered the services is also liable for them on an implied contract. Down to the receipt of them by the sheriff he certainly is; but it cannot be doubted that payment to the agent of the creditor by the debtor ultimately liable, discharges the collateral liability of the intermediate one. If the money be lost in the sheriff’s hands, it is lost to him whose property it was at the time; for a loss which could not have happened without some degree *187of negligence must be borne by him whose inattention occasioned it, and it is the business of the officer to see that the sheriff pay over his fees.
The exception to want of direction as to the order to stay proceedings on the executions in Yoder’s and'Keever’s cases is also well founded. It was prima facie a suspension -of the responsibility incurred by the levy, and it might have even discharged it by giving subsequent executions priority, as was held in Eberle v, Mayer, I Rawle 366, or by causing the goods to perish in the sheriff’s hands. All this might be rebutted by evidence proper for further direction ; but the defendant had prayed to have the benefit of the principle in the first instance, and he was entitled to it.
On the other hand, by the return of the capias ad satisfaciendum in Sanderson’s case, the sheriff became chargeable with the body. The informal return “served and delivered to court” is in substance the formal return invariably made, according to the English practice, on final process where the prisoner is not too sick to be removed, to wit: “I have taken the body of the within named A B, whose said body I have ready at the day and place within named.” This seems to be the universal form, for no other is found in Watson’s Sheriff 375 ; 7 L.L. 271; or in Bingh. on Ex. 447; 13 L.L. 221; and indeed none other would fulfil the command of the writ. I suspect that, except to a capias ad satisfaciendum on a statute or recognizance in which the mandate is to take and commit in the first instance, or by our practice, evidently borrowed from arrests on mesne process, the return of in custodia or committitur would not be allowed. The English forms afford no precedent, of it, the mandate of the capias ad satisfaciendum on a judgment being invariably, as with us, to have the body before the court at the return of the writ. The return before us, therefore, is in substance a better one than the return established by our practice. It is, doubtless, loosely worded ; but the writ could be served only by arresting the debtor; and the delivery of him to court, could be nothing else than the production of his body there to answer its exigence. The sheriff may doubtless have had his purposes to serve by the use of language so ambiguous; but if a man will undertake an office for which he is disqualified by want of capacity or proper dispositions, he has no room to complain that his obscurities and informalities are interpreted to his disadvantage. The return here was sufficient to charge him with the prisoner in the first instance; and being bound, from a reasonable time after the arrest, to keep him in jail, he can discharge himself only by showing that the prisoner was liberated by competent authority, or turned over to his successor; without which his appearance at large—and there was no justification of it here—is an escape which fixes the sheriff with the debt.
To the execution in Reynolds’s case the sheriff returned that he had levied the debtor’s goods, but without specifying the value; and the presumption being that it was equal to the amount of the debt, *188it lay oil the defendant to show the true value, prior liens, or subsequent matter of discharge. Now one ground of exception is a refusal to charge that the coroner’s sale on other executions directed by the bank’s attorney discharged the sheriff’s levy. The attorney, however, seems not to have acted exclusively for the bank; and of so much as was actually sold the plaintiff in error had the benefit. But the judge left to the jury, without particular evidence, it would seem, to say that all had not been sold which had been included in the sheriff’s levy; and this without attending to the presumptions of fact which arose from the nature of the transaction. To weigh these presumptions with their counterpoising proofs is the business of the jury; to declare their existence, in the first instance, is the business of the court. Now the subsequent seizure and sale, according to the coroner’s levy of all Reynolds’s personal property, rebutted the implication of amount from the sheriff’s levy; for the presumption is that all was sold, and for its value. This presumption, however, may in turn be repelled by proof that the subsequent levy was of different goods, or that a part was wasted or remained unsold.
There is an exception to the direction that the bail is liable for all received, and it is impossible to doubt it; but, unaccompanied by proof of collusion or ratification, the memorandum of the sheriff’s receipt, alleged to have been produced in court, was not evidence to affect him. The prothonotary had no authority to record the fact; and the receipt itself, had it been produced at the trial, could not have gone to the jury unpreceded by proof of authenticity.
The remaining point raised on this execution—that by directing it to the sheriff against one of his sureties, when it might have been directed to the coroner, the plaintiff gave the co-surety an equity to be'discharged from responsibility in the particular case—was ruled substantially against the exceptant’s position in Beale v. The Commonwealth, 11 Serg. & Rawle 299.
It is assigned, also, that judgment ought not to have been rendered for the plaintiff on the pleadings. To meet the eventual liability of his testator, the defendant pleaded that the action, though brought in time, had not been duly prosecuted ; and on this, the plaintiff, instead of demurring, went to issue. It is scarce necessary to say, that no statute requires diligent prosecution of an action on a sheriff’s recognizance, the limitation being that an action against the sureties 'be not instituted after five years. A scire facias on the act of 1798 was held, in Vitry v. Dauci, 3 Rawle, to require diligent prosecution ; but a sheriff’s recognizance was held, in Snyder v. The Commonwealth, 3 Penns. 286, to require no scire facias at all. The argument of the plaintiff in error would confound its lien with the subordinate lien of the intestate acts, which, making the effects of a decedent a fund for payment of his debts, require an action to be duly prosecuted in order to reach the real assets at the end of seven years; saving, at the same time, liens existing at the death. The fact pleaded was, therefore, impertinent; but as the plaintiff thought fit *189to put it in issue, it might be doubted whether he had not made it a turning point. It was, however, what was formerly called a horse plea, and treated as a nullity; and it is but to go another step, to treat the issue formed on it as a nullity also.
The last exception is to the title of the commonwealth to sue for her own use, and not for a party grieved. On the face of the declaration, the plaintiff has a legal title which is sufficient, it being unusual, and indeed impertinent, to set out the title of the beneficiary for any purpose but to show that the interposition of the commonwealth has not been wantonly invoked ; as was stated in Armstrong v. Lancaster, 5 Watts 68. But it has been ruled in Reigart v. Elmaker, 6 Serg. & Raiole 44, that to omit the title of the equitable plaintiff, is not error if issue be joined in the name of the legal one. Here it appears by the writ, that there has been no interference by a stranger; and the declaration might, if necessary, be omitted. This alone would not be cause of reversal.
Judgment reversed, and a venire de novo awarded.