
    Longacre v. The State, use of Conway.
    A coroner to whom an execution has been directed, and who pretends to act under it, is estopped on an action on his bond from denying his authority, although it may not appear that the sheriff was interested, or that the office of sheriff was vacant.
    On an action against a coroner on his bond, for a failure to make the money on an execution to him directed, the verdict of the jury was, we find for the plaintiff the debt in the declaration mentioned, which may be discharged by the payment of the sum of 318 dollars and 49 cents.
    
    By the court. “It was not the province of the jury to find the debt demanded by the declaration of the plaintiff. So much of the finding as relates to the debt demanded will be regarded as surplusage, if it contain what should be the judgment of the verdict. The verdict shows that the jury estimated the damages, and although the jury mighfr change the form of their verdict, the result would be substantially the same.”
    ERROR to Warren circuit court.
    This cause was tried before the Hon. Alexander Montgomery, at the November term of said court, 1832.
    . The governor of the state, at the instance of William Conway, instituted suit against the plaintiff in error, on his bond as coroner, for failure to make the money on an execution, which had been directed to him.
    The plaintiff below alleged in his declaration, that he had recovered a judgment against Lewis M’Kelmurry, J. H. M’Daniel, and Henry D. Downs, for 205 dollars; that execution issued thereon, and was directed to Longacre, as coroner, who levied the same on certain property sufficient to satisfy the execution, but neglected and failed to make the money, and having given up the property levied on, returned the execution into court unsatisfied.
    There was a demurrer to the declaration, which was overruled. A judgment was then taken by default, and a jury empannelled, and verdict as follows: “We of the jury find for the plaintiff the debt in the declaration mentioned, which may be discharged by the payment of the sum of three hundred and eighteen dollars and forty-nine cents.”
    Coalter, for plaintiff in error.
    The execution was directed to the coroner, and nothing appears in the record to show the necessity of so doing, or why it was not directed to the sheriff.
    The statute requires all process from the circuit court to be directed to the sheriff, or other proper officer. Code, 76, 77, 125, 155. The sheriff is the proper officer, unless it otherwise appear from suggestion. The coroner is authorised to serve process when there is a vacancy in the office of sheriff, or he is interested or incapable. The coroner shall, during such vacancy or disqualification, do and perform the duties which appertain to the sheriff. Code, 259, sec. 15. A constable is the proper officer of a justice by common law, and sheriff of the court. 1 Bibb, 485; 2 M’Cord, 470; 1 Tidd, 78. The sheriff in his ministerial capacity shall and is bound to execute the process issuing from the king’s courts in his comity. Jacob’s Diet. 74, 5, 82.
    To authorise a coroner to act, there must be a special suggestion of facts to show why the sheriff cannot. 16 Johns. 146; 1 Plow-den, 73; 2 Jacob’s Diet. 87; 1 Bl. Com. 349; 2 Halsted, 435. It is error, Ibid. 437.
    If process be defective in point of form, direction, test or return, it may be set aside. 1 Tidd, 90.
    Process executed by one not an officer, is error. 2 Bacon N. B. 221, 492, 3; 3 Caines’s Rep. 61; 16 Johns. Rep. 146.
    If a writ is returned it is a record, and may be proved in the same manner as other records. 1 Stark. Ev. 285.
    Where the law requires process to be executed by a certain person, if another make the arrest it is void and false imprisonment. 7 Cow. 269.
    No damages assessed, 1 Selw. 486,7; 437,8,9; 5 Johns. Rep. 636. The judgment ought, on demurrer, to be entered in the usual form for the debt and costs. The jury are then to inquire which of the breaches are true, and to assess damages for such as are true, for which damages an execution shall issue, and the judgment shall stand as a security fox further breaches. Cowper, 359; 3 Bos. & Pul. 611; 2 Wilson, 377; 16 Johns. Rep. 209; 4 /bid. 213; 8 Ibid. 111.
    It is not alleged that the debt claimed was not paid. The ministerial duties of coroner are where there is an exception to the sheriff, as being a party to a suit, of kin to the parties or on default, 2 Jacobs’ Diet. 87, venire to issue to coroner when sheriff is a party, or defendant is a servant to sheriff. But it ought to be on a principal challenge to the favor. 2 Jacob, 87. If the plaintiff allege any cause against the sheriff, the process shall be directed to the coroner. Co. Lytt. 158; Croke Car. 416; 6 Bacon, 164, letter (M).
    If any damages are assessed they are much greater than the damages claimed in the writ or declaration.
    The coroner undertakes to execute and return all precepts to him lawfully directed. This one was not lawfully directed.
    The record commences with pleas before Judge Montgomery in 1832, when the pleadings took place in 1834.
    If the defendant plead to issue, the jury must assess damages for such of the breaches assigned as the plaintiff shall prove to have been broken, otherwise the verdict is erroneous, and a venire de novo will be awarded. So it is where there is judgment on demurrer or by default. 1 Saund. 58, note 1.
    If defendant had paid the debt (the penalty) he might plead it in bar of the demand. 1 Saund. 58, note 1; Douglas, 49, 50.
    Prentiss, for defendant.
   Mr. Justice Smith

delivered the opinion of the court.

An action of debt was instituted in the circuit court of Warren county against Longacre, the plaintiff in error, upon his bond, as the coroner of said county, for having failed to make the money on .an execution in favor of William Conway, for whose use the suit was brought; which had been directed to him as coroner, and placed in his hands to be levied according to its precept.

A demurrer was filed to the declaration and several special causes were assigned. The demurrer was overruled and judgment by default taken against the defendant. Upon which a jury was empannelled to assess the damages, who returned a verdict in the following words, to wit: “ We of the jury find for the plaintiff the debt in the declaration mentioned, which may be discharged by the payment of the sum of three hundred and eighteen •dollars,” &c. Upon which finding of the jury the court pronounced judgment, and the cause has been removed into this court by writ of error.

The first objection which we deem it proper to notice is, that plaintiff in error ought not to have been made liable in the original suit, because the record does not show that the execution was properly directed to him as coroner.

And in support of this position it was contended, that the sheriff is the officer designated by the statute, to whom all processes emanating from the various courts should be directed, unless it shall appear upon the record that the sheriff was interested or the office -vacant. And that unless such fact appears affirmatively, the coroner, in any attempt to execute process, acts without authority, as a mere stranger, and cannot be held liable in his character as coroner. In this case the proceeding is against the coroner upon his bond, for a failure to discharge his duty as such. The question, therefore, which this exception presents is this; whether the coroner to whom an execution has been directed, and who proceeds to act under it is not estopped by his own acts from denying his authority, although it may not appear that the sheriff was interested or that the office of sheriff was vacant?

Whenever the coroner assumes to act in the execution of process, which should be generally directed to the sheriff, he acts as a vice-sheriff. Whatever he does, therefore, in that character, at least so far as he himself is concerned, is as conclusive as would be the acts of the sheriff upon himself. The return of the sheriff endorsed upon- a writ which was delivered to him for execution, possesses in itself such a degree of verity that it cannot be incidentally attacked by the parties; Stayton v. The Inhabitants of Chester, 4 Mass. Rep. 479; Norris’s Peake, 82; and is perfectly conclusive against the officer making the return. 6 Mass. Rep. 327; 7 Ibid. 388.

In-the case under consideration the allegations of the declaration that the -writ described therein was delivered to the defendant below, who was the coroner of the county of Warren; that it was by him levied and returned, is admitted by the demurrer. He cannot, therefore, be permitted to avail himself of the plea that he was not the officer whose duty it was to receive and execute the process.

The only remaining objections which it is at all necessary to notice are taken to the verdict of the jury who were empannelled to assess the damages sustained by the plaintiff in the original suit. The form of this verdict we have before seen.

These objections are that there was no assessment of damages by the jury, and that upon the finding the court was not autho-rised to pronounce judgment.

If the verdict of the jury is sufficient the objection is without foundation.

The jury were required to assess the damages incurred by the plaintiff in consequence of the non-performance of the conditions of the bond. It was certainly not the province of the jury to find the debt demanded by the declaration of the plaintiff. But so much of the finding as relates to the debt demanded will be regarded as surplusage if it contain what should be the substance of the verdict. The verdict shows clearly that the jury estimated the damages. They find for the plaintiff the debt in the declaration “which may be discharged by the payment of 318 dollars 49 cents.” This amount was the quantum of damages which the jury thought the plaintiff entitled to, and although they have not expressed this conclusion in the usual form, it is sufficient in substance and certainty.

An additional reason for not reviving the judgment on account of the informality of the verdict is, that although the jury might change the form of the verdict, the result would be substantially the same.

Judgment affirmed.

Mr. Chief Justice Shakkey gave no opinion.  