
    [SEPTEMBER TERM, 1803.]
    Hugg, Whitall and others, against Kille.
    AVhore the venire was directed to any one of the coroners, &c., without any suggestion that the sheriff was exceptionable, it is a fatal defect, and not cured by verdict.
    This was a certiorari, directed to Joseph Stratton, of Gloucester, to remove the proceedings in a case of forcible entry and detainer, brought by Kille against the plaintiffs in certiorari, tried before the justice in August, 1801. Various reasons were assigned for the reversal of the judgment in this case; those, however, which were insisted on are sufficiently noticed in the arguments of counsel. The case was argued in May term, 1803, by L. II. Stockton and Richard Stockton, for plaintiffs in certiorari, and by Leake and Woodruff (attorney-general), for defendant; but the court directed a second argument, which was had by the same counsel in September term, 1803.
    
      For the plaintiff.
    
    The main ground on which the plain-' tiffs in certiorari contend that the judgment in this case should be reversed, is, that the venire was misdirected. The venire was directed to any one coroner of the county of Gloucester.
    This was wholly erroneous. The sheriff is, in all cases, prima facie the proper officer to whom process is to be directed. . Pie is the person in whom the authority to execute process is reposed by the laws of the country, and it is not in the.power of the parties to put him aside, and direct process to another person, without some substantial ground of exception to him, upon the weight of which the court is, in the first instance, to decide. *IIere the venire is directed to any coroner of the county of Gloucester, without any exception having been taken to the sheriff, so far as appears on the record; it was, done on the mere motion of the party.
    Independent of the common law on this point, the act under which these proceedings were had, directs the venire to be issued to the sheriff. Act of 2d March, 1793, Pat. 290, sec. 7. When complaint shall be made to any justice' of the peace of the proper county, &c., it shall be the duty of the justice to issue a precept under his hand and seal, directed to the sheriff of the said county, commanding him to cause to come before the said justice twelve good and lawful men of said county, qualified to serve as petit j urors, &c.
    Under the terms of this act, the awarding process to the coroner, seems not to be recognized in any case ; a tribunal of a special kind is created, vested with jurisdiction over this species of offence, and directed to proceed in the manner pointed out by the law. No principle in law is more firmly established than that which prescribes, that when a jurisdiction of this kind is created, having authority over the rights and properties of others, the authority must be strictly pursued, and must so appear on the face of the proceedings. Rex v. Croke, Cowp. 26.
    Should it, however, be urged, that it must, at this stage of the proceedings, be presumed that the justice awarded the venire to the coroner, upon legal grounds of exception to the sheriff, still the error in the process remains. By the common law, all the coroners must join in executing process, or it is bad. Where they act judicially, the act of one is good, but all must join in ministerial acts. 1 Bao. Abr. 757. They are all regarded as but one officer, and the writ is uniformly directed to them jointly. This doctrine of the common law is expressly recognized by an act of our own legislature, passed 8th of March, 1796, (Pat. 196, sec. 3,) by which it is enacted, “ that any return, made and signed by any one of the coroners for the time being in any of the counties of this state, to any writ, precept, process or execution; except process for summoning of juries, which shall issue out of any court of record of this state, and be directed to the coroners of the said counties, respectively, shall be as good and effectual in law as if such return had been made and signed by all the coroners of the said county,” &c. This *act makes no alteration in the form of the writ or process, but when it is directed to the coroners generally, allows of a return by one. The act, also, in express terms, excepts the case of process for summoning juries. The writ is, then, clearly misdirected.
    But, in a court of common law, before a writ can be directed to the coroners, in lieu of the sheriff, the regular officer, it is essential that some reason should be assigned on the record-for this deviation from the ordinary course of proceeding. In the case of Rex v. Warrington, (12 Mod. 22) where the venire was directed to one sheriff alone, without his companion, it was suggested on the record, that the sheriff not named was of affinity with the defendant. 1 Lilly's Entries 143, contains the form of a suggestion of this kind on the roll; and in 2 Lilly 483, is another form of a suggestion, that the plaintiff is one of the sheriffs of London, and an awrard of the venire to the other.
    This defect, being apparent on the record, is matter of error, which may be taken advantage of by the party in the superior court. Cro. El. 574, 586, 894; 5 Co. 37.
    Nor can the defect be cured by the statute of jeofails, which does not cure defects of such a nature as this, vitiating the very foundation of the whole proceeding, and essentially a .matter of substance; nor do the statutes of jeofails, even if adequate to afford a remedy for such an irregularity, apply to courts of this description, unknown to the common law, deriving all their authority from statute, which prescribes to them their form of proceeding, from which they cannot legally deviate.
    
      For the defendants.
    
    This is an application to the court to reverse the proceedings had before not only a justice in the exercise of his statutory powers, but before a jury of the country, who, after a thorough and patient investigation, have determined the cause between the parties. No attempt is made to impugn the righteousness of the decision that has been given; — no complaint is uttered, that the plaintiff in certiorari has been injured or had injustice done him; — -it is not suggested, that he was forced into a trial without sufficient preparation, or cut off from any defence which could legally have availed. The defect upon which he relies is a technical one, wholly unconnected with the merits of the case; it is a defect which he knew of before the *trial commenced, and which, had his object been to secure himself from any injury that might have arisen from it, would then have been urged. He has thought proper to omit that opportunity to take his chance of a decision in his favor, and now to come forward to overturn the whole proceedings.
    But he has let pass the proper period of availing himself of such a defect. If the venire was improperly directed, or the jury summoned by a wrong officer, it was cause of challenge to the array; and he, having omitted to challenge the jury, cannot take advantage of it in error. The case of Lamb v. Wiseman, (Cro. Jac. 383) is strictly in point. The error assigned in that case was, that the venire being directed to the coroners, only two had joined in the return, whereas at the time the venire was awarded and returned, there were two other coroners who ought to have joined. The court overruled the objection — 1. Because it was a defect of which the party might have availed himself by challenge; and, having omitted to do so, shall not be permitted to assign it for error. 2. Because the defect was cured by verdict.
   Per Curiam.

(Without hearing the counsel for the plaintiff in reply.) The proceedings are irregular, and must be set aside.  