
    Keithley & Fisdale v. Borum.
    A return of the sheriff on process of “ executed by copy” will be understood to mean a legal service, by delivering to the defendant a copy personally.
    ERROR to the Madison circuit court.
    Tupper and Rollins, for plaintiffs in error.
    The counsel for plaintiffs in error contend that there is error in the procedings of the court below, in this, that there is no sufficient return of the capias. A service by copy is not good unless under certain circumstances which should have been recited in the return of the sheriff. See Rev. Code, 114.
    This error is not cured by the appearance of defendants below, because our laws do not recognise the validity of judgments rendered, without the issuance and service of a capias, except by a confession, which was not done in this case.
    There is error in the verdict and judgment thereon, inasmuch as the verdict was rendered upon no issue of fact properly before them, or if there was any igsue it was wholly immaterial and repugnant to the merits of the cause. 1 Chitt. Plead. 693, 694, and 695; Cheetham v. Tillotson, 5 Johns. Rep. 430; Buckus v. Richardson, Ibid. 476. And this error is not cured by the statute of jeofails.
    There is error also in the verdict and judgment in the court below, in this, to wit, the verdict and judgment are repugnant to the declaration; the declaration being in debt, with damages laid at 300 dollars, the verdict and judgment thereon for 1190 dollars and 60 cents damages, for the nonperformance of certain promises in said declaration mentioned. 1 Clritty, 104 and 357; Burger v. Kortright, 4 Johns. Rep. 415.
    
      Mitchell, for defendant in error.
    To the first assignment of error, to wit, that the sheriff's return is insufficient in not stating where and how it was executed, the defendant in error replies, you cured any supposed irregularity by appearing and pleading in bar.
    To the second, “ there is no issue on the record,” the answer is that it is cured by the verdict of the jury, under the act of assembly. Rev. Code, 134, s. 91.
    To the third, the same answer may be given, as to the second. Revised Code, 124, s. 91. The judgment being rendered for .a gross sum in damages is only informal at most, but is not erroneous.
   Mr. Chief Justice Shahket

delivered the opinion of the court.

The first objection taken in this case is to the return of the-sheriff on the process, which is in these words, to wit, executed by copy, 17th March, 1837. J. J. Henry, deputy for S. M. Flur-noy, sheriff.” It is said that service by copy is not good, except under certain circumstances, and that the sheriff must then recite the facts in the return. The 44th section of the circuit court law provides a mode by which process may be executed, when the defendant cannot be personally served, and has a known place of residence, and it is presumed the objection was taken under this section. There is another provision, however, contained in the 22d section, which places the matter beyond doubt. The sheriff is there required to serve the defendant with a copy, and having returned that service was made by copy, it must be understood to mean a legal service, made by delivering the defendant personally a copy of the writ. There is, therefore, nothing in this objection.

. It is also assigned as error, that there was not a proper and legal issue on which the jury could pass. The replication to the plea of failure of consideration was manifestly bad, but it concluded to the country, and the defendant accepted it and took issue. If, instead of doing so,he,had demurred, his demurrer would have been sustained, or if overruled, it would have been an error for which he could have reversed the judgment. It was a misjoinder of issue, and a defect in the pleading, which could have been demurred to, and is consequently cured by the verdict under the statute of jeofails.

Judgment affirmed.  