
    [Sunbury,
    July 1, 1825.]
    The COMMONWEALTH, for the use of BELLAS, against LEBO and others.
    
    IN ERROR.
    it is not evidence to show a consent by a plaintiff, that the sheriff should return a venditioni against the jprincipal debtor’s goods staid, and thereby to discharge the sureties, that the principal A. went to the plaintiff with part of the money, and returned and informed the sheriff that the principal consented to that return of the writ, and he did not complain of it till after the death of A., and afterwards issued an alias venditijmi exponas.
    
    It is the practice to send out with the juiy, calculations made by the parties, showing the items on which they rely, in cases-where'Calculation is requisite, in making up the verdict.
    Error to the court of Common Pleas of Northumberland county, where there was a verdict and judgment in favour of the defendants.
    
      It was an amicable scire facias, to which the defendants pleaded judgment with leave to give the special matters in evidence. Lebo had been sheriff of the county, and the other defendants were his sureties, and judgment had been entered against them on Lebo’s official bond. In this suit the plaintiff claimed fees due to him as prothonotary, which had come into Lebo’s hands while he held the office of sheriff. Lebo confessed judgment, and the trial was had against the other defendants.
    On the trial, the defendants offered to prove that when a venditioni exponas to April term, 1816, against Lebo, was put into the sheriff’s hands, he informed Lebo of it, and told him he must get something done, or his property would be sold. That Lebo collected two hundred dollars, and set out with Enoch Smith to go to Bellas. That shortly after, Lebo and Smith returned and informed the sheriff that he could return the execution stayed by the plaintiff, and the sheriff so returned the execution. That Bellas, though frequently in the presence of the sheriff, did not then complain of said return, but proceeded with an alias venditioni exponas, and that he never complained to said sheriff of said return, till after the death of E. Smith, in 1817. The plaintiff objected to this evidence, but the court admitted it and sealed a bill of exceptions.
    The plaintiff also objected to the defendant’s sending out with the jury two statements, containing calculations of the sums received by the plaintiff, and interest, and showing a balance.against him. The court allowed the jury to take them, but directed them to pay no attention to the statement on either side, further than the items were supported by the evidence. To this the plaintiff excepted, and tendered a bill of exceptions.
    
      Bancroft and Bellas, for the plaintiff in error,
    now assigned these points as error, — contending, 1. That the evidence received was no better than hearsay evidence. 2. The statements of counsel ought not to have been taken out by the jury. They contained calculations of interest contrary to principles of law. Only such written papers, depositions excepted, as are given in evidence, ought to go out with the jury. 5 Binn. 238.
    
    
      Greenough, contra.
    1. The evidence offered was not hearsay. It was a fact that Lebo collected two hundred dollars, and said.he would go to the plaintiff. It was a fact, that he returned to E. Smith, and told the sheriff to return the writ stayed by the plaintiff. It was a fact, that the plaintiff did not complain of this return till after the death of E. Smith.
    
    2. The statement objected to was only the account of the payments and allowances the defendants were entitled to, as stated by the defendants. But this was not offered as evidence, and so the court told the jury.
    
      
       See 8 Serg. & Rawle, 452.
    
   The opinion of the court was delivered by

Gibson, J.

The object of the evidence was to show that the sheriff had returned the venditioni exponas. “ stayed by the plaintiff,” by the direction of Mr. Bellas; but what beneficial purpose was intended to be effected by proof of that fact, I know not. The previous levy of Lebo’s goods, which had been conclusively established by the return of the fieri facias, was satisfaction pro tanto as respects all the defendants, and rendered the sheriff exclusively liable to the plaintiff, which it seems to me was all that was material for the defendants to show. This principle was determinined by this court at the last term, forjthe Western District, when the authorities on the subject were fully considered, and I will not here repeat them. However, as the defendants actually undertook to show that Mr. Bellas assented to the sheriff’s return, they could do so only by competent-evidence. A man’s assent can be signified only by his own acts or declarations. Then what were the facts relied on here ? The defendants psoposed to prove, that the sheriff, who had a venditioni exponas in his hands against Lebo’s goods, told him that unless something were done, his property would be sold ; that Lebo and Mr. Smith, with two hundred dollars in their possession, left the sheriff to go to Mr. Bellas, and shortly after returned and informed him that he should return the writ stayed by the plaintiff; and that Mr. Bellas, though frequently afterwards in the presence of the sheriff, signified no dissatisfaction at his having done so, till after the death of Mr. Smith ; but on the contrary issued an alias venditioni exponas. Now, whatever was done in the presence of the sheriff, was done by Lebo and Smith, and not by Bellas, who could not be affected by them unless they were done by his authority. There is no direct evidence of authority; but it would be sufficient if these acts were afterwards recognzied by BeZZas. As to that, we have only the silence of Be/Z«i',andhishaving issued an alias venditioni,as circumstances to draw an inference of recognition. In respect of the first, he ought not to be prejudiced, because he was not bound to speak; and in respect of the second, the only operation it could have, would be as distinct and independent evidence, though slight, of the fact of assent itself: but it would not amount to a recognition of the acts of Lebo and Smith, which are introduced to corroborate it. The act of Bellas in issuing a secondvenditioni, would be some evidence that he had assented to the return of the first, and had at some time or other, directed the sheriff to stay proceedings on it; but it would be no evidence that he had done it at the time, or in the manner that the acts of Smith and Lebo might seem to indicate ; and consequently, it would not legitimate those' acts as if done by Bellas, and render them competent, if they were otherwise incompetent. They were separate and distinct from the issuing of the second venditioni, and would, if competent, tend to the same conclusion; but it does not follow that evidence becomes competent only because it is corroborative of other evidence which is admitted to be so. These acts would, however, probably have been competent, if offered in connection with evidence that Mr. Bellas had actually received the two hundred dollars, and had credited it in the account; nothing of which appears in the bill of exceptions. With respect to the papers sent out with the jury, little need be said. These were not sent out as evidence, but as exhibiting the calculations by which the party arrived at the result which he claimed. Such statements are constantly sent out with the jury, in cases where calculation is necessarily employed in making up the verdict; and indeed they are found to be indispensible. In this part of the case, therefore, there is no error, but for the matter contained in the first bill of exceptions the judgment is reversed.

Judgment reversed.-  