
    [Sunbury,
    June 21, 1824.]
    BEALE’S Executors against the Commonwealth for the use of WORRELL and another.
    IN ERROR.
    It seems that process against a surety of the sheriff, may be directed by the prothonotary, to the coroner. However that may be, the coroner is bound to execute at his peril, all writs directed to him by a court having jurisdiction of the subject matter; and the securities of the coroner are responsible for his misconduct in the execution of such writs.
    Where a deputy has been appointed by deed, the deed must be produced and proved like other deeds.
    A return to a fi- fa. of levied on certain specified articles, together viith all the defendant’s personal property, is prima fade evidence of a levy to the value of the debt; and in an action against the surety of the coroner, for the coroner’s refusal to sell the goods of the defendant in the execution, it casts upon the defendant the burthen of proving the value of the whole of the goods of the defendant in the execution.
    He cannot be permitted to prove, the value of the goods specified in the return, alone.
    On the return of the record of this case from the Court of Common Pleas of Mifflin county, it appeared that it was. an action of debt on a recognizance, brought by the plaintiffs below, the defendants in error, against the executors of William Beale, one of the securities of the coroner of that county, for alleged official misconduct
    
      William and John Worrell,
    
    
      for whose use this suit was brought, obtained a judgment for 600 dollars and 51 cents, against David Reynolds, in the Common Pleas- of Mifflin county, at Jlugust Term, 1819, upon which a fi. fa. issued returnable to January Term, 1820. Reynolds, the defendant in the execution, being one of the securities in the official bond of the sheriff of the county, the writ was directed to the coroner. A return was made to the fi. fa., “ levied on a stove, drum and pipe, and a set of chairs and table, together with the whole of the defendant’s personal property.” This return was signed by David MlClure, for the coroner. The counsel for the plaintiffs proposed to prove by parol evidence and by records, that M‘Clure was the authorised deputy of the coroner; but the counsel for the defendants, having first proved that a written deputation was actually in court, in the possession of the plaintiffs, objected to the.evidence. The court however, admitted it, and an exception was taken to their opinion.
    After the return of the fi.fa. a vend-, exponas issued, which was delivered to the coroner, with a request to sell, but, he refused to do so, from unwillingness to offend the defendant in the execution, and the writ was never returned. An alias vend, exponas was issued, but no sale took place under it.
    The counsel for the defendants below, offered to prove on the trial, the value of the articles specifically levied upon, contending that the coroner was liable, if at-all, only to that amount. But the court rejected the evidence, and séaled a second bill of exceptions.
    The defendants’ counsel then requested the court to charge the jury:
    1st. That no deputation to MiClure had been proved.
    
      Opinion. A coroner may appoint a -deputy, and is answerable for his neglect. A person known and reputed as deputy, and proved by parol and by records, frequently to have acted as such, is to be taken as a legal deputy, and the coroner is liable for his misconduct.
    2. That the fi. fa. could not he legally directed to the coroner.
    
      Opinion. The fact of David Reynolds being one of the bail of the sheriff, forms such a connection between him and the sheriff, as that the writ might be legally directed to the coroner. Formerly, I believe, the objection to the sheriff was made in open court, and the court ordered the writ to issue to the coroner. This has not been the practice in Pennsylvania; but whenever the sheriff is so connected with a party, that a fair execution of proces is not to be expected, the process has been at once directed to the coroner, and this has been pretty generally the case in suits against the bail of the sheriff. ■
    3. That the plaintiffs, if entitled to recover any thing, can only recover to the amount of the value of the property levied on.
    
      Opinion. Whether the plaintiffs could recover more than the, proceeds of a sale by the coroner of the whole of the personal property of David Reynolds, is not now before us ; for it has not been sold. The officer refused to sell it. The defendants have not offered to prove the value of the whole of the personal property of the defendant in the execution; and in this case, under such circumstances, the defendant is liable for the whole of the plaintiffs demand. A sale might have been made since this suit brought, and the money raised, or the value of the goods ascertained.
    4. That issuing an alias vend, exponas, was a waver of the injury, (if any had been sustained) of which the plaintiffs complained in their declaration.
    
      Opinion. The return of the fi. fa. in this ease fixed the coroner; at least, unless he sold, and the defendants showed that the goods were of less value than the demand. The vend, exponas has come into use in this state, but it is not necessary on a levy on personal goods. It is an indulgence to the officer and the defendant. If the officer will not sell, or offer to sell on it, as he was fixed by the return of the fi. fa. the isssuing a vend, exponas does not release him from the liability created by the return.
    To the opinion of the court on all the above points, exception was taken, by the counsel for the defendants.
    A motion was also made in a arrest of judgment, because the declaration stated no cause of action. It stated only a levy, but no request to sell, nor any refusal by the coroner.
    The court however overruled the motion, and sealed another bill of exceptions.
    In this court, errors were assigned in the opinion of the court below, on the questions of evidence above stated, in their instructions to the jury, and in overruling the motion in arrest, of judgment; but in the argument, the counsel confined themselves to two points* ' ■
    
      Burnside, for the plaintiffs in error contended-:
    - 1. That the fi. fa. could not legally be directed to the coroner. The circumstance of the defendant in the execution being one of the sheriff’s sureties, was not a sufficient reason. Nothing but the relationship of the defendant to the sheriff, will authorise a direction of the writ to the coroner. 6 Bin. 254. Coroner. II. pi. 1, 5. 19 'Bin. 443.
    2. The return of the fit. fa. was in the hand writing of M‘Clure; and as the deputation was proved to have been in writing, which it was in the power of the opposite party to produce, it was error to admit parol evidence of his authority.
    
      líale, for the defendants, in error.
    1. The writ was well directed to the coroner. He is the substitute for the sheriff, whenever the latter is justly suspected of partiality, when interested, or a relation to the party. 1 Bl. Com. 349. 5 Com. Dig. Officer, C. 13. Judicial writs may be directed to the coroner, when the sheriff is not indifferent to either party.. Trials for Pais, 49, 54, 166. 3 Ba. Jib. 747. The practice in Pennsylvania has been, where suit is brought against the
    
      sheriff’s surety, to direct the process to the coroner. The practice is founded in solid reason, for surely in such a case, there is just ground to suspect partiality. If, however, the writ might have been directed to the sheriff, yet as the coroner undertook to serve it, his sureties cannot gainsay his act.
    2. It is not necessary to show a written deputation in a case like this. It is enough if M‘Clure, acted as general deputy. The writing will then be presumed. It rested with the opposite party to show that the authority was special. Potter v. Luther, 3 Johns. 431.' Hazard v Israel, 1 Binn. s>40. Young v. The Commonwealth, 6 Binn. £8.
    In reply, Burnside,
    
    denied the existence of the alleged practice in Pennsylvania, to direct to the coroner process issued against the surety of the sheriff, nor could any authority, he said, be produced in support of such a practice, if it did exist.
   The opinion of the court was delivered by

Duncan, J.

The natural order of considering the questions raised on the record is, first, was the testator of the plaintiffs in error, responsible as the bail of the coroner, for his official misconduct in the execution of the fi. fa.'?

Secondly. Was there legal evidence, that M‘Clure, who executed it, was the deputy of the coroner?

Thirdly. Was it competent to the plaintiffs in error to show, the real value of the specific articles levied on, where the return of levy, was of these articles, together with the whole of the defendant’s personal property, for the purpose of cutting down the plaintiff’s claim to the value of these articles?

Fourthly. The alleged defect in the declaration, in not stating a demand on the coroner to sell.

The objection, as to the recognizance, whether joint or several, cannot be inquired into in this state of the pleadings.

It is contended, by the plaintiffs in error, that the execution was improperly directed to the coroner, and therefore his bail are not accountable for his maladministration The suggestion, that the defendant in the execution, being the bail of the sheriff, did not stand indifferent, would not, as is urged, authorise the direction of the writ to the coroner. There appears to me, to be.a well grounded suspicion of partiality, and some reason to apprehend, favour in the sheriff, in the execution of a writ against his bail, for the discharge of his official duties. If the action was against the bail, for the sheriff’s neglect of duty, it would be improper to trust the principal with the execution of the fi. fa. This is one degree removed; but the defendant has some part in the manner in which the sheriff shall execute this writ. In his character as bail of the sheriff, he is answerable, that the sheriff shall duly execute the process against himself. He stands in a double relation; first, that of defendant, of whom the money is to be levied; and secondly, of the bail of the officer, that he shall faithfully execute. I think the just administration of the law requires, that the sheriff should be excluded from this service. There is an incongruity, at least a suspicion of partiality, bias, or influence. - The exception against the sheriff is not confined to affinity. But if from his situation, with regard to the party, there is reason to apprehend favour, his being under the power of the party, there being a bond of connection in the subject of the writ and its execution, he does not stand so indifferent between the parties, as an officer who has any thing to do with the execution of process ought to stand, and that would be a challenge to the favour, (Co. Lit. 158, a.) not necessary to be made to the court, but suggested to the prothonotary. The sheriff is, however, the proper officer to whom the process ought to issue, and he cannot be passed by, without cause; but if there is just cause of exception, the prothonotary may issue the process to the coroner. 8 Mod. 248. He is the proper officer to execute all writs, except in case of partiality. It is on the ground of partiality, that I think it has been usual, in such cases as the present, to direct the process to the coroner. But however that may be, still .the process is not void, for the coroner cannot dispute the authority of the court, out of which the writ issues, but is at his peril to execute all such writs as are directed to him by a court having jurisdiction, though such direction be erroneous. Dali on Sheriffs, 104. Process of the court to the coroner, where it ought not to he, is aided by the statutes of amendment. Dyer, 357, a. The obligation of the security in the recognizance, comprehends such process, when executed by-the coroner.

But the second error assigned must prevail. Though a deed may not be necessary to constitute a deputy, yet in general, the presumption of law is, that they are so. appointed; and where the proof is, that the deputation is by deed, the deed itself must be produced, and its execution proved, as in the ease of all written instruments. Here, there was evidence of a deputation by deed, then in the possession, of the plaintiffs counsel, and then in court. The law will acknowledge an officer de facto. Whether there is not a distinction between an officer de facto, and a deputy defacto, it is not necessary to decide. In the case of the officer de facto, that constitutes him a general officer in the plenitude of all official authority; but one or two acts done by a stranger, would not, perhaps, be deemed- evidence of a man’s being a general deputy. M(Clure was, so far as his authority went, a deputy de jure. The written deputation might have been limited pro hac vice. That was the best evidence, and the bail when sued for the default of the coroner, by the act of the deputy, had a right to demand the production of that authority, for the abuse of which, he, a stranger to the deputation, was called on to answer. To prove that by reputation, while the party offering that proof stood in court with the proof of the fact in his hand, would be inconsistent with that inflexible rule of evidence, which requires the best evidence in the power of the party to be produced. There was error in the admission of this evidence, and in the opinion of the court, with respect to its effect.

The return of, levied, on the small stated articles, with the sweeping return, together with all- the defendant’s personal property, is prima facie evidence of a levy of the value of the debt, and would cast on the defendant the burthen of proving the whole value of the defendant’s goods. It would open a wide door for collusion, if the sheriff on a fieri facias for 5000 dollars, were permitted to return, levied on a gridiron, and all the defendant’s store of goods, without specification, and when sued for, not making the debt, say, I will prove the value of the gridiron, and am not accountable for more.

The court properly decided, that by this return the coroner was fixed for the whole amount of the debt, unless he showed what other personal estate the defendant had, and its amount. It was peculiarly proper, where the coroner refused to sell at all, lest he should offend the defendant. This is such misconduct, at least as to require him to give a satisfactory account of all the defendant’s personal estate, liable to execution and sale. As to the request to sell, it was not necessary; a venditioni exponas is only necessary to bring the plaintiff into contempt, for not selling on the fieri facias. The plaintiff may sell, and it was his duty to sell without a venditioni exponas. If he has made the return of levied and unsold, for want of buyers, there he is not liable, but a venditioni exponas must issue. 2 Saund. 71, 343. But having returned a levy on all the defendant’s goods, without specification or schedule, and not having returned, unsold for want of buyers, this is prima facie evidence, of a general levy ad valorum. And in Clerk v. Withers, 2 Ld. Raym. 1075, it was held by Lord Ho lt, ¿¿that the sheriff is liable for the value of the goods, and is bound to sell them at all events, and is bound to the value he has returned them to be of. And although the goods are lost, or rescued from him, he is hound, not to that value they afterwards are found to be, but to the value he has returned them, and an action of debt lies against him for that value.” And if a sheriff will not specify in his return, what he has levied on, but makes a return of levied on all the defendant’s goods, I would consider it as a return of levied to the. value of the debt, so far at least as to cast on him the burthen of proof, what the goods were, and the value. If this is not done, it affords a strong temptation, and an easy mode of successful collusion between the sheriff and the defendant. Here the defendant offered only proof of the specific articles and their value, without offering any evidence of the other personal property of the defendant, and its value, which was justly overruled by the court. But judgment is reversed for the reason assigned, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  