
    William C. Demoss vs. Joseph Brewster, et al.
    In an action against partners, upon an open account, service of process upon one will not be notice to the other.
    13. sued C. & D., partners under the style of C. & Co.; the sheriff returned the writ “executed on C. & Co. Held, that the return was uncertain in not showing upon which of the defendants it was executed, and was therefore insufficient.
    In error: from the Hinds circuit court.
    This was an action of assumpsit in favor of Joseph & L. Brewster, on an open account against Alexander Coleman and William C. Demoss, who are alleged to have been late partners under the firm of “ A. Coleman & Co.” The writ is directed “to the coroner of Hinds county.” It is indorsed “Received October, 20, 1838, L. Lusk, Cor. of H. C.”— Returned, “ executed on A. Coleman & Co. October 27, 1838. Lewis Lusk, Coroner, by J. A. Moore, Deputy.”
    At the return term, there was judgment by default and writ of inquiry, which was executed at the term next succeeding, and final judgment then rendered for the damages assessed; from which Demoss prosecutes this writ of error.
    There are two errors assigned.
    1. That the capias sued out by the plaintiffs is directed “to the coroner of Hinds county,” and no reason is shown why it was not directed to the sheriff, as required by law.
    2. The judgment being by default, there is no sufficient service to authorize it, even if the capias had been properly directed.
    Clifton, for plaintiffs in error.
    
      First. By the common law, the sheriff is the proper officer of a court of record. The general rule is that a-ll writs are to be directed to, and executed by, the sheriff of the proper county. A writ directed to and executed by any other than the sheriff is bad, unless it be shown there is a vacancy in the office of sheriff or that he was incapable to execute his office in the particular case, as provided for in the act of 1822, neither of which appears upon the record. That it should so appear, see 16 Johns. 146 ; 2 Halst. 435.
    There being a departure from the general rule in this case, both as to the address and execution of the writ, it is incumbent on the plaintiffs to show that this was a proper case for such departure, and this can only be done by the record itself. The reason for the direction to any other than the sheriff, must appear on the record, that the court may judge whether the case provided for by the statute exists, and, if this appears prima facie, to be so, that its existence may be controverted by the sheriff, or the adverse party. The clerk has no power to determine, confine the reasons for it to his own breast, and demand that we acquiesce in his determination, merely because he has not thought proper to furnish us with the means of questioning its accuracy. To allow this would be to confer on the clerk, power to dispense with the office of sheriff altogether. But it is not allowable; the court and the adverse party are alike entitled to know why the proper officer has been set aside.
    The doctrine of presumptions in favor of the acts of public officers, upon which it is understood the plaintiffs rely, cannot be turned to advantage here, because it is no part of the clerk’s duty to indicate to a party applying for a writ, whether it shall be in debt, trespass or covenant, and be directed to the sheriff or coroner of Hinds, Madison or Rankin. He must issue such writ as the party demands. The statement of the record that “ J. & L. Brewster sued out the writ ” is conformable to the fact, and to legal implication, and they cannot escape the error by seeking to make the special address of the writ the official act of the clerk. Being thus specially addressed, without any reason given, and there being no appearance to the action, it is error. 2 Halst. 437; 3 Caines, 61.
    These reasons appeal to the court with much persuasive force, when upon further examination of the record, it is left in doubt whether or not the plaintiff in error ever had notice- of the action, a doubt which the circumstances cause greatly to preponderate against the conclusion that he had such notice, because,—
    
      Second. The return on the writ is uncertain, insufficient and absurd, and states no fact from which a legal inference can be deduced, that Demoss, the plaintiff here, had any information of the institution of the suit; and this court has sanctioned what other courts have declared, that under such circumstances, it is a violation of every principle of natural justice to proceed against a party. The return “ executed” is a good return only when the officer performs the precise service, which, by the writ he is commanded to perform. The writ is a command to take the defendants, and have them before the court, at a time and place therein specified When the officer has only handed the defendant a copy of such writ, or left it at his residence, he cannot with truth return the writ itself, “executed.” As he does not in fact, execute the writ at all, he should return the facts, that the court may determine whether they amount to legal service. To return a writ as in this case, “ executed on A. Coleman & Co.” cannot be held to be a service upon any other than A. Coleman; unless it can be proved that the officer knew that A. Coleman was not a sole trader, trading under the firm and name of “ A. Coleman & Co.”
    The service of a writ is a fact, consisting of things done, and leaving nothing to inference, and where the service can only be inferentially proved, by argument, as in this case, it is bad.
    These errors stand now, as they stood when they were committed. Nothing has been done to sanction them; they are fatal to the judgment founded on them, and it ought to be reversed.
    
      Tarpley and Hubbard, for defendants in error.
    1st. The writ was issued by the clerk of the court, whose duty it is to issue it properly, and according to law. The ordinary rule is that the process must be directed and executed by the sheriff, but by the provisions of the act of 1822, (H. & H. 303, s. 43,) “if there shall .be from any cause whatever, a vacancy in the office of sheriff, in any comity within this state, or the sheriff be a party, or interested in any suit, or for other just cause, is rendered incapable to execute his office in any particular case, the coroner of such county shall, during such vacancy, or in the cases wherein such sheriff is disqualified, to act as aforesaid, execute, do, and perform all the duties which appertain to the office of sheriff;' and in every case, where, by such vacancy, or exception to the sheriff, any writ of what nature soever the same may be, shall be delivered to the coroner of such county to execute, such coroner shall do and perform all things by virtue of such writ which the sheriff himself might or ought to have done, had there been a sheriff duly qualified, or no just exception had existed against him according to the nature of the case,” &c.
    If, therefore, it is known to the clerk at the time he issues the writ, that any of the exceptions set forth in the foregoing section, exists against the sheriff, it is the duty of the clerk to direct the writ to the coroner. The presumption of law in such cases is, that the exception to the sheriff, as specified in the statute, did exist, and was known to the clerk at the time he issued the writ and addressed it to the coroner, otherwise he would have addressed it to the sheriff, it being his duty as a sworn public officer, in the absence of such exception, to address his process to the sheriff.
    The general rule of the law in such cases is, that where a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it is to be presumed that he has duly performed his duty, until the contrary is shown. Williams v. East India Company, 3 East, 192; The King- v. Hawkins, 10 East, 211, margin. See also, Hilts v. Colvin, 14 Johns. R. 182; Hartwell v. Root, 19 lb. 345 ; Marsh v. Lawrence, 4 Cow. R. 461; Minklaer v. Rockfeller, et al. 6 lb. 276; Ex parte The Peru Iron Company, 7 lb. 540; Lindner v. Aaron 6p Nelson, 4 How. R. 581.
    2d. The second error assigned is that the judgment being by default, there is no sufficient service to authorize it.
    The writ commands the coroner “ to take Alexander Coleman and William O. Demoss, late merchants and partners under the name and style of A. Coleman & Co.” The coroner returns the writ “ executed on A. Coleman & Co.” This is sufficient. The defendants, Alexander Coleman and William C. Demoss, are described in the writ as “ A. Coleman & Co.” The coroner is thereby informed that “ A. Coleman & Co.” are Alexander Coleman and William C. Demoss. The coroner returns that he executed the writ on “A. Coleman & Co.” Now if this return be true, (and it must be taken as true) then he executed the process on Alexander Coleman and William C. Demoss; and the coroner being commanded by the writ to take Alexander Coleman and William C. Demoss, is presumed to have done his duty, which presumption is consistent with his return, and irresistible from it. The defendants below having been served with process and having failed to make any defence, - the judgment by default is conclusive. Clairbourne v. The Planters Bank, 2 How. Rep. 728.
    For these reasons it is insisted by the counsel for the defendants in error that there is no error in the record in this cause, and that the judgment ought to be affirmed.
   Mr. Justice Thacher

delivered the opinion of the court.

An action of assumpsit was instituted in the Hinds county circuit court by J. & L. Brewster, against Alexander Coleman and William C. Demoss, late partners under the firm, name and style of A. Coleman & Co. The writ was directed “ to the coroner of Hinds county,” and by him returned “executed on A. Coleman & Co.” Two grounds of error are takenJ1"- 1st. That no reason is shown why the writ was not directed to the sheriff of the county. 2d. That the judgment being by default, there is no sufficient service to warrant it.

The return upon the writ in this case is insufficient. It is uncertain upon which of the defendants the service was made, and it is consequently bad as to both. It cannot be presumed that it was made upon both, and, even if served upon one, that would not be notice to the other, and therefore the judgment would be erroneous. Pittman v. The Planters Bank, 1 How. 527.

Judgment reversed and cause remanded.  