
    Christy v. Bohlen.
    To'a scire fadas issued on a recognisance of bail, an affidavit by the defendant, stating that the plaintiff in the original action issued a fi. fa., whereupon a levy was made, and enough money collected by the sheriff to pay the debt, interest, and costs, in that case; a copy of the return being annexed, from which it appeared that the proceeds of the sale were greater than the debt, &c., was held to be sufficient; — an averment of a receipt in satisfaction is not necessary.
    The defendant in error having obtained a judgment against Holahan the plaintiff in error entered into a recognisance for stay of execution. A scire facias having issued thereon, the defendant filed air affidavit of defence, stating, «In the original suit, wherein deponent became surety, the plaintiff issued execution, to wit: a writ of fieri facias, June Term, 1845, No. 155, whereupon a levy was made, and enough money collected by the sheriff to pay the debt, interest, and costs in that case; a copy of the sheriff’s return to said writ is hereto annexed, but for greater certainty the deponent refers to the record of said original suit.”
    
      Copy of the return. — “ Levied upon the personal property of defendant, June 4th, 1845, and sold the same at public sale, June 21st, 1845, for four hundred and eighty-two dollars.”
    Judgment was thereupon entered, for want of a sufficient affidavit of defence.
    
      March 9.
    
      Dunlap, for plaintiff in error,
    The affidavit presented a primafacie case of satisfaction of .the debt.
    
      McCall, contra.
    The affidavit does not aver satisfaction. The fact was, the landlord obtained the whole amount of the levy for arrearages of rent. [G-ibson, C. J. — That is matter of replication; the surety is not bound to set out more than the principal; the levy is prima facie satisfaction.] The proceedings against the principal and his bail are concurrent, and certainly there should be some averment of satisfaction.
   Burnside, J.

We are all of opinion, that the affidavit of defence was sufficient. The amount of the judgment in the original action having been made on the fi. fa., by a sale of the defendant’s goods, and in the hands of the sheriff was a substantial satisfaction of the recognisance of bail for stay of execution. Milliken v. Brown, 10 Serg. & Rawle, 188; 1 Rawle, 392. Where the sheriff returns that he has sold goods to the amount of' a certain sum, by virtue of an execution, he is liable for the same. The utmost the defendant below was liable for, if his.affidavit was true, was the costs of the scire facias.

Judgment reversed, and procedendo awarded.  