
    Pope & Hickman v. Stout.
    1. In summary proceedings against officers, when there is a material issue on controverted matters in pais, they have a right of trial by jury.
    2. The fine to be assessed against sheriffs, coroners and others, for failing to return process under the act of 1807', Sec 31, is within the discretion of the Court trying the cause-, and the decision of the Circuit Court on a motion under that section, being on a discretion* ary power, is not subject to revision in this Court.
    3. An execution against a sheriff must be directed to the coroner ; and if direcied to the sheriff'; it cannot be legally executed by the coroner, though delivered to him.
    This cause was brought into this Court by writ of error sued out by Pope and Hickman, who were also plaintiffs below, to reverse a judgement rendered by the Circuit Court of Morgan county, at April term, 1826, on a summary proceeding against Stout, as coroner of said county, for failing to return according to law, a certain writ ot fieri facias which had issued on the 18th of November, 1819, from the then Superior C.onrt of said county, then called Cotaco county, in favor of the plaintiffs, against Washington Gray, the then sheriff of said county, for b997 30 debt, S99 70 damages, and <514 37 costs; and which had come to the defendant’s hands as it was said.
    The notice issued the 29th of March, 1825, and was served on Stout, apprizing him that the motion would be made against him for said default at the April term ensuing. The defendant, Stout, ap ¡seared and plead that the fi. fa, never did come to his bands as coroner, nor to the hands of any one authorized by him, and concluded to the country; and issue was joined. An agreement war. signed, by which the parties consented that the notice might be amended so as to make it sufficient, and that the plea should be considered good in law. An additional plea was afterwards filed by the defendant, denying that he was at the time of the issuance of the fi, fa. or at any other time, coroner of said county, to which the plaintiffs replied generally, and issue was joined.
    On the trial, the plaintiffs produced an execution, running in the name of Cotaco county, directed to ti e sheriff of said county, in favor of the plaintiffs, against W asmng-ton Qray? for the amount mentioned in the notice, and,. issued the 18th of November, 1819. On the back was endorsed the following: “Received, 29th November, 1819, A. Stout, Coroner C. C. Levied on the goods and chattels of W. Gray on the-- day of-offered for sale on the-day of-- no sale for lack or want of bidders. A. Stout, coroner.” The plaintiffs then proved orally by the clerk, that the precept was directed to the sheriff instead of the coroner by mistake ; that Gray was at the date of the writ and afterwards, the sheriff of the county, then Cotaco, and that Stout was his deputy; also, that Stout was then acting as coroner, though there-was no proof that he was commissioned or qualified.
    The defendant gave in evidence an entry in the execution docket, made by the clerk, of the issuance of said execution in those words: -\fi. fa. issued November 18, 1819, to W. Gray sheriff, returnable first Monday in February, 1820,” and proved that the endorsement on the writ was not in the hand writing of Stout, but in that of Gray or his brother.
    The plaintiff then proved by the clerk that he made-said entry, but that it was a mistake ; that he did on that day deliver the precept to Stout as coroner; also, that Stout, the defendant, did return the writ into the clerk’s office on the 7th of February, 1820. The return was entered also in said docket by the clerk. It was prov'ed that prior to the return of the precept, Gray had, in some-instances, written the returns of Stout, as deputy sheriff, on processes, which Stout recognized as his returns, but there was no proof that he had made any such as coroner. -
    The defendant requested the Court to charge the jury that the precept was void; that the parol evidence should be disregarded; and also, all that which went to shew that Stout acted as coroner. But the Court instructed the jury that if the defendant received the process as coroner and returned it as such, that it was sufficient; that the parol evidence was competent to shew a mistake, and was to be weighed with the other testimony; that if the defendant acted as coroner, it was sufficient to charge him, as such without producing his commission ; and that if he made or sanctioned the return, then the return was insufficient, and not in obedience to the command of the precept, The jury found for the plaintiff $1637 36, damages besides costs..
    
      The defendant then filed the following reasons in ar-íest of judgement: 1st. That there was no law authorizing the trial of such an issue on amotion by a jury. 2nd. That the only law in existence when this execution issued, makes the coroner liable upon motion to be fined five per cent by way of penalty. 3rd. That there is no law making a coroner liable to a r< covery of the amount of the execution, interest and costs, as here permitted, for failing to return an execution. The plaintiffs offered and were allowed to remit so much of the verdict as was included for interest, to which the defendant objected. The Court sustained the motion in arrest, and gave judgement for costs in favor of the defendant.
    Clay and M‘Clung, lor the plaintiffs in error.
    Kelly and Hutchinson, for defendant.
   JUDGE PERRY

delivered the opinion of the Court.

The errors assigned are, 1st. That the Court below erred in arresting the judgement on the reasons assigned therefor. 2nd. That judgement should have been given for the plaintiffs on the verdict of the jury. In considering the first assignment, the attention of the Court is called to the reasons filed for the arrest of judgement in the Court below ; the first of which has been settled by a previous decision of this Court, unless a distinction exists in regard to persons, and the situation they occupy in society as regards their relative rights to a trial by-jury, for the ascertainment of facts in a court of justice. It is believed that no such distinction exists, and that the various officers whose negligence or other cause subject them to a summary proceeding by motion, have the same right to have a controverted fact tried by a jury, as any other citizen has who may be brought into Court by its ordinary process, when a material issue is tendered, involving matters in pais. In the case of the Tombeckbee Bank against the State, it was decided by this Court to be error in the Court below, to refuse the claim of the corporation to a trial by jury; that was a proceeding by motion to recover a forfeiture incurred Under the revenue law.

The two last reasons in arrest of judgement may be included in the last assignment of cror, which brings to view the extent of a coroner’s liability for'failing to re-' (.um a J¡, j'a, placed in his hands for collection. The liability, if any is incurred, is created by the thirty-first section of an act passed m 1807, which provides that when any writ of execution or attachment for not per-r , . , , ,, . . forming a decree m chancery, shall come into the possession of any sheriff, coroner or marshal of a corporation, and he shall fail to return the same to the office from whence it issued, on or before the return day thereof, it shall be lawful for the Court, ten days previous notice being given, upon motion of the party injured, to fine such sheriff, coroner or marshal, in any sum not exceeding five dollars per month for every hundred dollars contained in the judgement or decree on which the execution or attachment so by him detained was founded, and so in proportion for any greater or lesser sum, counting the aforesaid months from the return day of the execution or attachment, to the day of rendering judgement for the said fine.” From this act it is obvious that the legislature intended to give the Court before which the motion should be made, a discretionary power in fixing the amount of fine which the delinquent officer should pay to the party injured by his negligence. The exercise of this discretion is alone the act of the Court, uncontrolled by the verdict of a jury, as to the amount of fine so to be imposed. W hen they had tried the issues submitted to them, they had done every thing they were called on to do ; and the Court, from the circumstances of the case, are left to the exercise of that discretion, which it is contemplated by the statute the Court should exercise for the benefit of the injured party. The Court below not having thought proper to impose any fine upon the defendant, but having arrested the judgement, it is presumed there was not sufficient evidence to authorize it, or at least that the plaintiff had sustained no injury; it being the exercise of exclusive original jurisdiction, this Court cannot control it.

It is also the opinion of the Court, that as the record shews that the execution was directed to the sheriff, who was the defendant in the same, the coroner could not legally execute it; that whenever the sheriff is a party to a suit, or otherwise interested, the process must be directed to the cotoner. The judgement must therefore be affirmed.

ffuDGE White having presided below did not sit» 
      
       Minor's Ala. Rep. 425.
     
      
      il Laws Ala. 303.
     