
    
      Peter Cauble and R. Loveland vs. David Hoke, coroner.
    1. A sheriff’s entry of an execution against himself is void.
    2. In such case, the coroner becomes invested exclusively with the power of sheriff, and is one of the sheriffs of the State, to a limited and prescribed extent.
    
      Before Butler, J., Greenville, Extra Court, August, 1841.
    This was a rule upon the coroner. It appeared that David Henning, who was sheriff of Greenville district, had entered in his office executions against himself, in favor of the plaintiffs and others, who also held executions against him. Others of his execution creditors subsequently made entries in the sheriff’s office of Anderson, and also in the coroner’s office of Greenville. Mr. Hoke, in his return to the rule, enumerates the various executions,’with the dates of their entries at Greenville and Anderson ; states that he had received the appointment of coroner from his Honor Judge Earle ; that he had levied on and sold defendant’s property, in the cases stated, on a credit, by consent of parties, and was ready to apply the proceeds to those entitled to them.
    The following is the report of his Honor, the presiding Judge:
    “ If the lodgment of the foregoing executions be good and valid, it is conceded that they will have a legal advantage and priority over others that claim the money in the coroner’s hands, which were subsequently entered in the sheriff’s office of Anderson district, and also in the coroner’s office of Greenville, (at least in the office of the present coroner.) The sheriff (Henning) lodged in his own office executions against himself, and it is contended that this is sufficient to bind his property, although the sheriff had no legal authority to enforce the executions afterwards. My opinion is, that it is not competent for the sheriff to do any thing in his own office to affect the rights of parties to an execution either for or against himself. His is not a competent office for such a purpose. The coroner of each district is exclusively the competent officer to enter in his office an execution affecting the rights of parties against the sheriff of such district. The coroner stands to the sheriff as the sheriff does to the other citizens of his district. According to this view, the plaintiffs in these executions have acquired no advantage by the entry of their executions in Henning’s office, but would be postponed to those who had theirs subsequently entered in the sheriff’s office of Anderson.
    All the facts of this case do not appear in the within return made by the coroner to the rule served on him, to show cause why he should not pay over the money in the within cases. It was alleged that these executions were lodged in the office of one Borum, who had acted as coroner of Greenville before they were either lodged in Henning’s office or in that of the sheriff of Anderson. But it was contended, on the other side, for the junior execution creditors, that Borum was not coroner at the time of such lodgment. As the rights of the parties very much depend on this fact, upon which there was no evidence offered, and upon which I had no information, I leave the question open to be decided hereafter, upon rule or suggestion, as the parties may think most advisable. So far as I am at present advised, I discharge the present rule upon which this case comes up.
    The plaintiffs appealed.
    “ The coroner will take notice that the plaintiffs will move the Court of Appeals in Columbia to reverse the decision of his Honor in this case, on the ground that the lodgment of the fi. fas. in the sheriff’s office did create a lien on the property of David Henning, and that his Honor erred in deciding that they did not.”
    Mr. Perry, for the plaintiffs.
    It is contended, on the-part of the plaintiffs, that an entry may be made in the sheriff’s office of a writ, process, orfi.fa. against the sheriff, and that this entry will bind his property or be valid in law., It is not pretended that a sheriff' can serve a writ against himself, or levy a. fi.fa. on his own property; though it has been decided in New York that a sheriff may serve a writ in which he is plaintiff. See 4 Johnson, 486. There is an obvious distinction, in point of fact, between the registering of a writ or process in the sheriff’s office, and serving or executing such writ or process. This distinction is as old as the common law itself. In all the English authorities on this subject, the language used is, that the sheriff shall no't “ serve or execute” any writ or process in which he is a party. But there is no case to be found or dictum, to be quoted, in which it is intimated that a sheriff may not enter in his office a writ or process in which he is interested. The language of all the books, from Lord Coke down to the present time, is, that where a sheriff is a party in any case, the writ or process shall be “ awarded" or given over to the coroner to “ serve or execute ; leaving the inference very strong, if not conclusive, that all incidental matters to “ serving or executing" a writ or process may be done by the sheriff
    The sheriff’s office is the proper place to look for all writs and process. They go to that office, necessarily, from the clerk’s office. They are required to be directed “ to all and singular the sheriffs,” 7 Statutes, 200. In England all writs and process are' directed to the sheriff of the county in which they are issued. But, says Lord Coke, 4 Inst., 271, “where there is just exception to the sheriff, judicial process shall be awarded to the coroner for the execution of the king’s writs, in which he is, locum tenens vice comilis." See, also, 1 Black. Com., 349; 1 Bailey, 245. From these authorities it would seem clear that the coroner is the substitute of the sheriff when writs or process are to be served or executed, and not until they are to be “ served or executed." Until they are to be “ awarded" 
      to the coroner, the sheriff is capable of doing every thing in regard to them. He may register them in his office, and they may remain there, where they are, in the first instance, directed by law. It is not necessary that a writ should be formally directed to the coroner. It may have long since been directed to the sheriff, and on just exception being shown to him, it may be handed over or adjudged to the coroner, and the direction may then be changed or not. See Plow den’s Com., 208.
    The ft. fas. against Henning were not intended to be levied or acted upon. They were issued to bind his property. Where could this lien be created but in the sheriff’s office % It is doubtful whether the entry of an execution in the coroner’s office will bind property at all. Certainly it can only bind property of the defendant in that district. No general lien throughout the State can be created but in the sheriff’s office. In England a. ft. fa. only binds personal property in the county in which it is taken. It can only run in one county'; and does not bind property out of that county. This, too, was the law of South Carolina, until it was altered by statute. See 7 Statutes, 175, 254, 262, 294. In consequence of these various statutes, from 1721 to 1799, declaring that all executions shall be directed into all the counties, and shall be served by the sheriff of the district wherein the defendant or his property may be found, the courts have decided that “ executions bind property throughout the State, from the time they are entered in the sheriff’s office.” See 3 McCord, 241; 1 Bay, 294.
    The only law which would infer that an entry in the coroner’s office bound property at all, is a statute of Charles II, passed in 1672, and made of force in this State in 1712. See 7 Statutes, 528. When this act was made of force in South Carolina, writs and process were not directed’ “ to all and singular the sheriffs,” and did not run except in one county. In the act of 1721, already referred to, requiring executions to run into all the counties, no mention is made of coroners, or writs being directed to coroners, or of an entry in the coroner’s office binding personal property. A ft. fa. directed to the coroner could not run in another district, because he has no jurisdiction there. It could not be served by the coroner of a district out of which the sheriff lived; but it might be served by the sheriff of another district, provided the defendant had property there, or was found there.
    The Act of 1839, which is a sort of codification of the law on the subject of coroners, does not require that the process shall be directed to the coroner. It does not require that the coroner should have any thing to do with the process or execution until it is to be “ served or executed,” and then only does the Act require the coroner to serve or execute” such process against the sheriff, or, where the sheriff is plaintiff, to “ serve or execute” such process against the defendant. Not one word is said about the coroner’s entering such process or fi. fas. in order to give them a lien, (fee. Section 47 of this Act repeals “ all acts or' parts of acts repugnant to this act.” Where, then, is the authority of the coroner for interfering with a writ or process in which the sheriff is a party, until it is to be “ served' or executed?” When the fi. fa. is to be levied, it must be taken from the sheriff’s office and given to the coroner to levy and sell. The law very properly presumes that the sheriff is not a fit and proper person to levy and sell property in a case where he is a party. The coroner then becomes his substitute. The fi. fa. is handed to him voluntarily, or, on application to the court, and just exception to the sheriff shown, it is awarded to him, in the language of Lord Coke. The Act of 1839 provides, also, that where there is just exception to the coroner, the party having a right to control such process may have a suitable person appointed to serve or execute it. But this can only be done when the process is to be served, or executed, not when it is to be registered or entered. From the very language of the Act it appears that the papers which the coroner's substitute is-to serve may be in the sheriff’s office, showing that the sheriff may have the custody of papers in Which he is interested as plaintiff or defendant.
    Suppose there are writs, process, and executions in the sheriff’s office against the sheriff, which were there before his election to the office. It will hardly be contended that those papers are invalidated by the defendant’s getting possession of the office. Nor will it be necessary to have them taken from the sheriff’s office until it is desired to have them acted upon. Suppose some of these papers are ji.fas. in which the sheriff is plaintiff, and other ji. fas. are obtained against the same defendants junior to the sheriff. If the plaintiffs in these junior fi. fas. should order the sheriff to levy and sell the defendant’s property, it would hardly be contended that, in paying out the proceeds of the sale, the sheriff must overlook entirely his own fi. fa. Would not the sheriff be bound to notice his own fi.fa. under these circumstances 1 The sheriff is not bound to notice a judgment or fi. fa. unless the same be entered in his office. If, then, the fi. fas. were not first registered in the sheriff’s office, they might be overlooked, or the rights of the sheriff endangered. They would also lose their lien entirely in another district, where the defendant owned property.
    It is no unusual thing for a public officer to have charge of papers, and be required to do some official act towards them, in which he is privately and individually interested. The clerk of the court may enter up judgment and sign an execution in which he is plaintiff or defendant. The Secretary of State may issue a grant of lands to himself. He may record his own official bond. He may put the seal of State to a military commission for himself. The Treasurers of the State have to file and keep in their own offices their bonds for the faithful discharge of their duties. The Governor of the State has issued a military commission to himself. Indeed, there are very few public officers who have not in some way, on particular occasions, to act in their own cases. If the duty be too important, it must be assigned to some one else, but until this is done he must act. The sheriffs have not been deprived of entering ji.fas. in their own cases; but they have been refused the authority of serving or levying a writ or execution in favor of themselves. This distinction between serving and entering a process is recognized in many of the States. The sheriff is forbid to serve, but not to enter, a writ in jiis own case. See 4 Randolph, 199; 14 Massachusetts, 216; 1 Greenlief, 165; 11 Mass., 182; Croke’s Car., 416; 1 Black, Rép., 506.
    The entry of the fi. fas. in Anderson district gives them no validity. Henning neither lived, had property, nor was to be found in that district.
    Mr. Townes, contra,
    cited and commented on the following authorities: P. L., 271, 379, 11, 369; 1 Story, L. U. S., 63; 2 Jacob’s L. Dictionary, 87, title coroner; 2 McCord, 470; 1 Daily, 467, 421; 1 Plowden, 73; 2 Cro. Car., 416 ; 1 W. Blackstone, 506; 5 Com. Dig., 132, 146; 6 Id., 416; 6 Pet. Abr., 589, 132; 19 Yiner Abr., 483; 6 J. R., 22; 13 Law Library, 222, 223; 1 McMullan, 485; 1 Little’s Kentucky Rep,, 6; 6 Stat. at Large, 324; Acts of 1839, p. 82; 7 Stat. at Large, 175, 254, 262, 294; 1 McCord, 214; 3 Id., 241.
    Mr. Young, same side.
    Wherever there is just exception to the sheriff, the coroner is to act. He cited 2 Stat. at Large, 528.
    Mr. Burt, in reply.
    The sheriff’s office is the proper place for the registry of executions. From that entry they take date throughout the State. Should the .sheriff make a fraudulent entry, his bond would be the party’s redress. The enforcement and the lodgment of executions are very different'; for the former, the coroner is the sheriff’s substitute. The coroner must distribute according to the liens in the sheriff’s office, and while acting as sheriff, in case of vacancy, is required to keep a book. If the execution had been against both sheriff and coroner, where could it have been entered %
    
   Curia, per

Butler, J.

The only question strictly involved in this appeal is as to the validity of the entries made by Henning, on the execution in which he was a party interested. I propose to shew that Henning had no official authority to make such entries, and that they could not give to the executions on which they were made, any binding efficacy. This proposition must be maintained, on the ground that the official functions of a sheriff cease in all cases in which he is a party, and that all acts done by him, in relation to any judicial process for or against him, are void, ab initio, so far as regards third persons; and that, in such case, the coroner becomes invested exclusively with the power of sheriff, and is one of the sheriffs of the State, to a limited and prescribed extent. In treating of the of~ fice of coroner, Lord Coke says: “ Besides his judical place, he has also authority, ministerial, as a sheriff,” (fee.; and that “ when there is just exception taken to the sheriff, judicial process shall be awarded to the coroner, for the execution of the king’s writs, in which case he is locum tenens comitis.” The ministerial powers of sheriff are the same here as in England, so far as regards the service of process, or any acts to be done in his own case. “ In the commencement of civil cases, he is to serve the writ, to arrest, and (when required,) to take bail; when the cause comes to trial, he is to summon and return the jury; when it is determined, he must see the judgment of the court carried into execution.” Bl. Com. 1, p. 344. The only particular in which a sheriff in this State cannot act as a sheriff in England, so far as it regards the powers thus enumerated, is that he has no discretion in summoning a jury, but, in that respect, must be governed by the law, which requires him to summon those alone whose names are mentioned in the venire. But the question of interest can be illustrated as well in the cases in which the sheriff would have an interest in serving the venire, as imanv^alhers ; and in'England, nothing is clearer than cannot summon a jury in a cause in which hi kindred are concerned; for in such Case, he ganizing his own court, and would not hav| tion of indifference so much desired by the so far as it regards any other act to be perforé under or by virtue of any judicial process," could acquire an advantage to himself, or do hurt tefanother, the same principle would apply. In such case, he has no authority at all, but the process is awarded by the law, and should be directed and delivered to the coroner in the first instance. “Where a sheriff is interested, a latitat directed to him is ill.” 1 Wm. Blac. And in Oro. Car. it is laid down that if the sheriff is either plaintiff or defendant, or one of the cognizees, the writ must be directed to the coroner. The 16th section of the statute of frauds is enacted on the assumption that the writ must be delivered to the coroner, in the first instance, when the sheriff is a party interested, for it provides, “that no writ of ji. fa. or other execution shall bind the property or the goods against whom such execution is sued forth, but from the time such writ shall be delivered to the sheriff, under-sheriff, or coroner, to be executed.” Now, as the coroner can only act under a writ against the sheriff, and as that writ must be directed to him, its binding efficacy, when a fi. fa., must commence from the time the coroner receives it in his office. This excludes the inference that th efi.fa. could have been entered in any other office. Indeed it would have been ill if it had been directed by ñame to the sheriff, himself. The county court Act. P. L. 369, directs that all writs should be awarded to and served by the coroner, in cases for or against the sheriff; and the Act of the Legislature of 1839, has in no wish changed the law, but is rather confirmatory of it. Section 41, of that Act, prescribing the duties of coroner, is as follows: “ If the sheriff shall be a party, plaintiff or defendant, in any judicial process, execution, warrant, summons, or notice, to be served or executed in his district, thé coroner shall serve or execute such process, execution, warrant, summons, or notice; in the discharge of which duties, he shall incur such liabilities as would, by law, attach to their performance by the sheriff, himself. As it regards the summons and warrant, there can be no doubt but they must be delivered to the coroner, in the first instance. It might be important, sometimes, to withhold the knowledge of the existence of such papers from the sheriff, particularly the warrant; and the same remark may be made of a ca. sa. And if a sheriff is under an official obligation to enter in his office afi. fa., why not enter a ca. sa. against himself. If he had a right to enter it, he might have an interest to withhold it, or delay its execution, for no one would like to give validity to the warrant of his own imprisonment. A ca. sa., like a fi. fa., is directed to all and singula! the' sheriffs of the State; and if so, why should they not be entered as fi.fas. are % All the processes to be executed by the coroner, except the fi.fa., must necessárily be delivered to him in the first instance.

But it is said the fi. fa. should be entered in the sheriff’s office proper, because the sheriff is required to keep books for such entries, and because th efi.fa. runs into all the districts, and is directed to all the sheriffs. I hold, however, that the coroner is one of the sheriffs of the State, whilst he is invested with the official functions of a sheriff; and that a writ of execution directed to all and singular the sheriffs, is well directed to him; and that whilst he is acting on it, he will incur all the liabilities, and should perform all the duties, of a sheriff. He is sheriff towards one man, as much as the sheriff is so to all the people of the State. One has a larger and the other a more limited scope of authority. In looking, therefore, for executions for or against the sheriff, reference must be had to another sheriff’s office, so far as he is concerned. Though not required by law to keep books for entries of papers against the sheriff, the coroner must still keep an account of his transactions ; and when he has many cases, a book would be necessary. And is it not well that the transactions of the coroner and sheriff, so far as regards executions in which the latter has an interest, should be kept entirely separated? The sheriff should not have any temptation to do wrong, either for his own advantage, or to the prejudice of another. And what frauds might not a sheriff commit by false entries 1 It is said, for such frauds he would be answerable on his official bond. I do not admit that a sheriff’s securities would be liable for all his wrongful acts. They are not liable for the penalties which a sheriff may incur for many illegal acts, such as withholding money against the demand of the owner, and thereby incurring the penalty of fifty per cent. But be that as it may, it is ■ better to prevent than to remedy mischief. And by not suffering the sheriff to have any thing to do with papers in which he is interested, much prejudice to third persons maybe avoided.

The most plausible ground upon which the validity of the entries in Henning’s office has been rested, is the consent of the plaintiffs in execution. There would be some-: thing in this if these plaintiffs were the only parties concerned. But there are others who occupy an adversary position, and who have never given assent. Henning cannot, therefore, sustain his acts under a derivitive authority from all the parties engaged in this controversy. His acts must be referred to the agency of the law; and as that gives himno authority to bind others by his individual acts, in which he was a party, they can have no official validity; no more than if the same acts had been done by the clerk, or any other functionary acting without legal authority. The consent of the plaintiffs lodging executions with the clerk, could not give them any advantage against third persons and strangers to the transaction.

I think, from what I have said, it will follow, that if the entries in the coroner’s office were valid, those made by Henning were void, as the law contemplates but one office for such entries. We do not intend to say any thing more, than that the entries made by Henning in his own office, give the executions Upon which they were made, no binding efficacy. How far the entries made in other offices may affect the rights of parties, must depend upon a fuller de~ velopement.of facts, and must be left to future adjudication. Motion refused.

Richardson, Evans, and Earle, JJ. concurred.

Per

O’Neall, J.

I dissent, on the ground that the entry in sheriff Henning’s office, was good.

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