
    
      V. McBee and others, vs. D. Hoke, Coroner.
    
    1. Where one was appointed to the office of Coroner, by Resolution of the Legislature, under which appointment he was entitled to continue in office until a successor should be appointed and enter upon the duties of his office, but failed to give bond before acting, as directed to do, his office is not thereby vacated, nor are his acts, as an officer, void in law.
    2. Executions against the Sheriff of the district, entered in the office of a Coroner thus appointed and so acting, and before the appointment of a successor, held good, and having been lodged anterior to any entry of the executions of the other creditors, were entitled to be satisfied out of the fund in the hands of the Coroner.
    3. The statutory provision requiring a bond to be given, is directory merely. Vide Act of 1821, (6 Stat. 164,) and 1839, p. 49.
    4. One in office, and transacting its duties, is supposed to be rightfully there, and so far as third persons are concerned, that presumption legalizes his acts.
    5. Although the individual holding the Coroner’s office, with whom the plaintiffs’ executions were lodged, might, by proper process, have been compelled to vacate it, for not complying with the law, yet the entry was in the proper office, and the act defacto was just as good as the act de jure.
    
    
      Before O’Neall, J. at Greenville, Spring Term, 1843.
    Opinion and Report of the presiding Judge.
    This was a rule, on the part of the plaintiffs, execution creditors of David Henning, against the Coroner, requiring him to shew kause why he did not pay over to them the proceeds of the sale of their debtor’s property. He returnd for cause, that he had been notified not to pay over the same to the plaintiffs, by J. M. Roberts, Robert Cox and others, execution creditors, also, of Henning, who claimed to have the same paid them.
    “The point of contest between the claimants was, whether an entry made by B. Borum, as Coroner of Green-ville district, of the plaintiffs’ executions was good.
    It appeared that B. Borum had been appointed Coroner, in December, 1829 ¡ (Resolutions, page 40,) in December, 1834, he was re-appointed; (Resolutions, p. 39,) he was again appointed in December, 1836. It was conceded, that under his last appointment, he never gave bond. His fees, as Coroner, were paid by the Legislature, 1832, Resolutions, p. 12 — 1833, Resolution, p. 38 — 1837, Resolutions, p. 34.
    It was contended, inasmuch as Borum had not given bond, although he acted as Coroner, and was recognized as such, by the Legislature, that yet he could not be regarded as Coroner de jure or defacto,
    
    Messrs. Robert Cox, and the other execution creditors, claiming against the plaintiffs, asked for an issue to try whether Borum was or was not Coroner, I thought there was nothing requiring such an issue. All the facts were undisputed, and the question growing out of them was plainly a legal question.
    If Mr. Borum were the Coroner, then the plaintiffs’ executions were lodged anterior to any entry made of the executions of the other creditors, and were entitled to be satisfied out of the fund in the hands of the Coroner.
    I thought, and so ruled, that Borum’s acts as Coroner, were good; that he was, at least, a Coronor defacto, and hence, I was bound to respect his acts. Taylor vs. Shrine, 3d Brev. Rep. 516.
    So, too, I thought his appointment by the Legislature, conferred the office; and whether he gave bond or not, was entirely immaterial, on the question whether his acts were or were not valid. He might, by proper process, at any time, have been removed from office, for acting without complying with the law. But, until removed, he was to be regarded as rightfully in office, and all his acts good. The State vs. Lyles, 1st McC, 239; the State vs. Hutson, 1st McC. 240; the State vs. McClintock, 1st McC. 245; Gourdine ads. The Heirs of Barino, Harp. Rep. 221; Rex vs. Jones, 2 Camp. Nisi Pri. Rep. 131; Rex vs. Verelst, 3 Camp. Nisi Pri. Rep. 332,
    The rule was, therefore, made absolute; and the Coroner appeals on the annexed grounds, which also have accompanying them copies of the creditors’ notice to the Coroner, and his return, to which reference can be made, if necessary.”
    The defendant moved the Court of Appeals, to reverse the order of bis Honor, on the following grounds :
    1. Because his Honor decided that the executions of plaintiffs had a lien on the property of D. Henning from the time of their delivery to one B. Borum, whom the defendant returned as no officer, in his answer to the rule, which return was verified by affidavits, &c.
    
    
      2. Because his Honor decided that it was unnecessary for a Coronor to give bond and security before entering on the duties of his office, and that executions against a Sheriff, delivered to a person who has been appointed Coroner, by the Legislature, have a lien upon the property of the defendant, from the date of their delivery, notwithstanding the person so appointed Coroner has failed to give bond, as required by law, and has no commission to act as Coroner.
    3. Because his Honor should have directed an issue to try the question of fact, whether the said B. Borum was or was not Coroner.
    4. Because his Honor decided that executions issued from, and signed by, the clerk of the district where the judgments were obtained, acquired no lien upon the property of the defendant, D. Henning, by virtue of their lodgment in the Sheriff’s office of any other district.
    N. B. The executions embraced in the notice below copied, were lodged in the Sheriff’s office of Anderson district, and the entry was endorsed on them accordingly.
    COPY OP NOTICE TO CORONER, MENTIONED IN HIS RETURN.
    
      J M. Roberts vs. David, Henning. L. Lenhardt vs. Same. R. Cox vs. Same. Others vs. Same.
    
    
      To David Hoke:
    
    Sir: — You will take notice that the plaintiffs in the forego ing stated cases (fourteen in number) will claim to have their executions satisfied out of the proceeds of the personal property of D. Henning, the defendant, which is in your hands or control, as their said executions are prior to other executions, (known to you) in their legal lien upon the property of the said Henning, by reason of having been first lodged with a proper officer, to give them a lien upon the goods and chattels of the said Henning. There was no lawful coroner for this district, at the lodgment of the said other, executions; and the said D. Henning being the then sheriff, could not act officially in cases in which he was a party ; and the fourteen executions above stated, were first lodged with a competent officer to give them a lien upon the goods and chattels of the said defendant, D. Henning, as appears by the record on the same. You will, therefore, take notice to apply the proceeds of the said goods and chattels of D. Henning, in your possession or control, to the before enumerated executions, as the law requires, (fee.
    G. F. TOWNES, Plaintiffs’ Attorney.
    
    Dec. 17, 1840.
    COPY OF CORONER’S RETURN.
    
      V. McBee vs. D. Henning. B. Dunham vs. D. Henning. Others vs. Same.
    
    For his return to the rule in this case, D. Hoke, special Coroner, states that he has been notified to pay the money arising from the sale of the personal property of the defendant to other execution creditors, John M. Roberts, Robert Cox and others, who claim the same by virtue of having the oldest lien; and they have given him notice that there was no Coroner, in fact, for the district, at the time the executions of the plaintiffs in the rule were lodged; the official character of B. Borum, the supposed coroner, being denied; and the said D. Hoke further shews, that the executions of John M. Roberts,. Robert Cox and others, who have given notice of their claim to the proceeds of the property of D. Henning, sold by him, claim priority of lien by virtue of a lodgment of their several executions in the hands of the Sheriff of Anderson district, .which lodgement was anterior to the delivery of any of the executions to the said D.. Hoke. The notice alluded to, is herewith furnished. .
    D. HOKE.
    
      Mr. Townes, for the motion,
    cited 1 Bailey’s Equity, 83, 89, 90.
    As to a Sheriff’s vacating his office if bond be not given, cited, 5 Stat. 258, 369 ; 6 lb. 147, 148, concerning bonds to be given by public officers. As to the office and duty of Coroner, 2 lb. 270 ; 7. Stat. 270, 298 ; also, 6 lb, 164, 325.
    Appropriations for an employment, do not make an officer. 2. Bailey, 220.
    
      As to qualifications of a magistrate, before whom perjury may be committed, cited 1 Nott & McCord, 547 ; 16 Wend. 562. Service by the Coroner, in an interval of the Sheriff’s office is not good, 1 Bailey, 264. Cited, further, Phillips on Evidence, 470, 453, 469 ; 1 Cranch, 137, 156, 160. The entry of the executions was no act, but a mere attempt to give alien.
    Perry, against the motion.
    The Coroner derives his authority from his appointment, and not from his commission. The official acts of a public officer are valid, although there may have been some irregularity in his taking charge of the office. The contrary would be a most mischievous rule.
    The appointment of a Coroner, is a distinct act from that of giving bond and being commissioned. The one is made by the Legislature, and the other is a ministerial act of the Governor, which he is bound to perform, and about which he has no discretion. Coroners are appointed in the same manner as Justices of the Peace. See 6 Stat. 164. The power of appointment is derived from one section, and that of commissioning from another. If the appointment and the authority to commission were both given to the Governor, then it might more properly be contended that the commission was the evidence of appointment, and the authority to discharge the duties of the office.
    A commission is not necessary to the appointment of an officer by the Executive, Marbury vs. Madison, 1 Cranch, 156. In England, the appointment of a city officer, who had not taken the sacrament, was absolutely void by statute, and yet his acts were valid as to strangers. 6 Bac. Abr. 14, title office and officers ; Rex vs. Jones, 2 Camp, 131. The fact that a Surrogate had acted as such, is sufficient prima facie evidence of his appointment, 3 Camp. 433. The acts of an officer, defacto, who comes into office by color of title, are valid as concerns the public, or third persons, 7 Johnson, 549 ; 3 lb. 431; 12 lb. 296 ; Wend. 231; 9 Cowen, 26 and 182 ; 7 lb. 402.
    When the neglect of any formality by an officer is punished by a penalty, his acts arb still valid as regards the public and and third persons. State Rep, 221; 2 N. H. Rep. 270, 202 & 206 ; The acts of one whose commission is not valid, are good until the commission is declared void. 2 Tread. Con. Rep. 696. The commission is only evidence of appointment. 1 McCord, 233. In ordinary cases, proof that a person is generally reputed an officer, and not that he is actually in the exercise of such office, will be sufficient evidence of the fact. 1 Mills Con. Rep. 463 ; 4 Ter. Rep. 366.
    Chancellors, before entering on the duties of their office, are required to take certain oaths, under a penalty of ten thousand pounds. 7 Stat. 208. Sheriffs, Coroners, and Justices of the Peace, are also required to take an oath to suppress gaming, before they are qualified to act in their offices. 6 Stat. 27. But no one will suppose that all the official acts of a Chancellor are void, because he neglected to take the prescribed oath; or that the acts of a Sheriff are void, because he did not take the oath to suppress gaming.
    Suppose a bond of a public officer be informal and void, will his official acts all be void under that bond ? The acts of a King are valid before his coronation. The acts of a King, de facto, are valid, although he be an usurper, 6 Bac. Abr. title Prerogative, 390, letter A.
    The acts of an attorney are valid, although he may have incurred a penalty by not taking out a .certificate, which was required, before he was allowed to practice. 1 Dowling & Ryland, 215.
    Young, in reply, contended that the Acts of our Legislature must control this case.
    Cited 6 Stat. 164; Acts of 1839, p. 49.
   Caria, per

Q’Neall, J.

In this case, the report presents, in a short way, the reasons which have been satisfactory to the court for dismissing the motion, and it would be, perhaps, quite enought to refer to them without undertaking to enlarge upon the matter here. But the able and lawyerlike arguments, with which we have been furnished, on both sides, require a little fuller answer to be made to the failing party, than the report presents. The case of Cauble & Loveland vs. Hoke, Coroner, 1 Spears’ Reports, 168, decided that the entry of the executions, in these cases, in the office of Henning, the Sheriff, who was also defendant, was not good, and that the entry in the Coroner’s office was legal.

The entry now in question, was first made, in point of time, and will prevail, if made in the office which, in law, is to be regarded as the Coroner’s.

Mr. Borum, who made the entry, was first appointed Coroner, in 1829, he was re-appointed in 1834 and 1836. The Act of 1821, (6th Stat. at Large, 164,) providing for the appointment of Coroner, by resolution, limits his tenure for four years, and '■'■until a successor shall be appointed, and enter upon the duties of his office.” The same Act requires him to give bond, and directs that the Governor shall not commission him until such bond be given. The same provisions are repeated in the Acts of 1839, Acts of ’39, page 49.

The first observation to be made on these statutory provisions is, that they are directory merely; there is no provision which declares his office to be vacated, if the Coroner fails to give the bond. He is directed to do so before entering on the duties of his office. But if he does not execute the bond or receive the commission, and acts in his office, it does not necessarily follow that it is thereby vacated. Unquestionably he is Coroner by the appointment of the Legislature, the commission is the mere evidence of his title; when once in the office, he is entitled to hold until legally displaced.

It is next to be remarked, that the provisions in the case of Coroner and Sheriff, are different. The Coroner is merely directed to give bond before entering upon the duties of his office, and the governor is authorized to commission him on giving bond. In the case of the Sheriff, the Judges are directed not to permit him to enter upon the duties of his office until he records a certificate that he has executed and lodged in the treasury his bond, and if he fails to execute the bond, his office is declared to be vacated, 5 Stap at Large, 285. It is plain, from comparing these provisions, that the office of the Sheriff is much more hedged around with obstacles to entering upon it, without giving bond, than that of the Coroner; yet, I have no doubt, that if a Sheriff were to enter upon its duties, without giving bond, that all his acts, so far as third persons are concerned, would be good. The persons confiding or transacting business to or with him, finding him in office, would have the right to say, we did not enquire by what authority he exercised it. As to them, his acts for or against them, would be good. He, himself, would be liable, and could not justify his acts, if he was not rightfully in office.

Mr. Borum was appointed first in 1829, and was entitled, under that appointment, to continue until a successor was appointed and entered upon the duties of his office. No successor was appointed until after the lodgment of these executions. So that, in that point of view, his acts would be good.

But I take the broad ground, that being found in an office, of which he had been the incumbent for many years, the plaintiffs had the right to regard him as Coroner, and his acts for them are good. All the cases cited, admit this as a general proposition, and I did not understand the ingenious counsel for the defendant to deny it. He contended that the cases of the Coroner and Sheriff, under our laws, were distinguishable from the host of cases ruling the acts of an officer de facto, to be good, so far as third persons were concerned. But if there be a distinction, I have not been able to perceive it. One in office, and transacting its duties, is supposed to be rightfully there, and so far as third persons are concerned, that presumption legalizes his acts. Such a position is necessary to prevent the interminable difficulties in which we should be involved, if it were otherwise. It may be illustrated by putting a case which may occur again and again. A Sheriff sells a tract of land, it is bought by a third person, and it afterwards is discovered he had not given bond, would it do to say that the title should be defeated 1 Certainly not. He is an officer, de facto, and that is enough. So here, Mr. Borum is found in office, the executions were lodged with him, and afterwards, it is found he has not given bond, this cannot, and ought not, to affect the validity of his act for the plaintiffs. They have entered their executions in the Coroner’s office, and although the man holding it may be compelled to vacate it, on account of illegality in his appointment or qualification, yet the entry has been made in the proper office, and the act, de facto, is just as good as the act, de jure.

The motion is dismissed.

Evans, Butler and Richardson, JJ. concurred.

Wardlaw, J. having been of counsel, gave no opinion.  