51 Miss. 79 | Miss. | 1875
delivered the opinion of the court.
Suit on tax collector’s bond. There was a demurrer to the declaration, which was overruled. Taylor alone appears; as to the others, there was judgment by default, and a writ of inquiry of damages. Taylor consented that the issue presented by him should be tried by the same jury, and at the same time with the inquiry of damages as to all. There was a verdict for the plaint, iff, without dispute as to the amount of the recovery. Numerous questions are presented, however, by the plaintiff in error, all the defendants in the action having joined in bringing the case to this court for review.
1. It is insisted that the court was not properly organized. The record recites that the office of sheriff was vacant, and, therefore, the coroner was present and acting as sheriff. To this it is objected that it should appear in the record that the coroner had given the bond required by the Code, § 244. Presumably he had. But it is not necessary that the record should show that the coroner, any more than the sheriff, had given the official bond required by law. Nothing appears to the contrary. But the coroner may perform some duties without the bond required by the Code, § 244, as provided in § 699. See also § 257.
2. The process was directed to the coroner, as the sheriff was a party; this was as it should be. Code, §§ 257, 699; Arnold v. Wynn, 26 Miss., 338.
3. The third assignment of error is answered by what is said as to the first and second assignments, and as to the validity of the acts of the coroner. See further, Code, § 317.
4. The fourth assignment alleges error in overruling the demurrer to the declaration. Ten causes of demurrer were set forth. The material question presented rests in the fact that the tax collector in this instance was illegally appointed, and this appointment was void. Hence that the bond sued on was void, and
5. The fifth assignment is to the effect that the jury was not sworn to execute the writ of inquiry against the defendants who suffered default. The record certifies to the impaneling and swearing of the jury. It is presumed the statutory oath was administered. Jurors for the term, week or day, all are required to be sw.orn to try all issues and execute all writs of inquiry submitted to them. Code, § 744. This oath was undoubtedly administered in the case at bar.
6. The sixth assignment is based on the submission of the issue made by Taylor at the same time with the inquiry of damages as to all; to this Taylor consented, as shown by the record; there was neither prejudice nor error in this.
7. The jury returned their finding in writing; their several findings being contained in the same writing. This is the ground of the seventh assignment, and requires no consideration.
8. The eighth assignment is a repetition of prior assignments, to the effect that the appointment of the tax collector was void, and the bond was void; this has already been considered.
9. A ninth error is assigned in the brief of counsel, that the record does not show that either the issue or the writ of inquiry was submitted to the jury, the record states that because the damages are unknown, came a jury of good and lawful men to execute the writ of inquiry awarded, and to ascertain the damages in this cause, and to try the issue joined between the plaintiff and B. Taylor, defendant, the said B. Taylor in open court consenting that said jury should try said issue and execute said writ of inquiry at the same time, to-wit (A. E. Foxworth and eleven others), who, being elected, impaneled, tried and sworn a true verdict to render according to the evidence, and the evidence having been submitted to them on their oaths, returned the following verdict, to-wit, $2,031.91 for plaintiff.
Affirmed.
