#### William B. Whiteside, Plantiff in Error, v. John Bartleson, Defendant in Error.

ERROR TO MADISON.

A sheriff was sued for money had and received, and the court assessed the damages without the intervention of a jury. This is error.

Opinion of the Court by

Chief Justice Reynolds, and Associate Justice John Reynolds.

This was an action of assumpsit, containing only a common count for money had and received. The court below rendered judgment against White-side, in favor of Bartleson, and assessed the damages without the intervention of a jury, and it is to reverse this judgment that this writ of error is prosecuted. The liability of White-side arose upon his return of an execution as sheriff of Madison county, and this return being reduced to writing, and remaining upon file in the clerk’s office of said county: It was therefore contended that this makes his liability certain, *72and authorizes the court to assess the damages. If this argument be yielded, it would follow, that in every case where a fact could be made certain, the court, and not a jury, should try the cause. The consequences which would flow from such a proposition would be too absurd to admit the principle. The right of trial by jury would be thereby destroyed, and the interference of the court regulated, not by the certainty of the matter contained in the declaration, but by matter dehors.

Starr, for plaintiff.

Smith, for defendant.

The execution, with the return of the sheriff, when that return shall be proved, would certainly be evidence—but evidence for a jury and not for the court.

A jury should have been impanneled to assess the damages—this not having been done, it is error, for which the judgment ought to be reversed. Let the judgment be reversed, and the cause remanded for new proceedings not inconsistent with this opinion, (a)

Judgment reversed.

(a)

Post Rust v. Frothingham & Fort. As to writs of inquiry, see Tidd’s practice, 513. 4 T. R., 275. 2 Bos. & Pull., 55. Bell and Bell v. Aydelotte, ante, page 45.