#### James J. Ryan, Plaintiff in Error, v. Abner Eads, Defendant in Error.

ERROR TO WASHINGTON.

A return to a writ by a person who signs himself " Deputy Sheriff,” without stating for A. B., sheriff, is erroneous. A deputy sheriff can only act in the name of his principal.*

*

Rev. Laws of 1827, p. 373, sec. 11.

Opinion of the Court by

Justice Lockwood.

This is a writ of error to the Washington circuit court.

Several errors have been assigned, but it is unnecessary to notice more than one of them.

The second writ of scire facias was returned by a person who signs himself deputy sheriff. This was clearly erroneous. A deputy sheriff can only act in the name of his principal. The judgment having been entered by default, this irregularity can be assigned for error.' Judgment reversed for the *218irregularity of the proceedings below with costs, but the reversal not to operate to the prejudice of any future proceedings on the mortgage, (a) , (1)

T. Reynolds, for plaintiff in error.

McRoberts, for defendant in error.

Judgment reversed.

(a)

It is essential when a deputy is appointed, that he have all the powers of his principal. 3 Dane’s Dig., 89.

A deputy has no interest in the office, but is only the shadow of the officer, in whose name he does all tilings. Jac. Law Dict., Title, Deputy.

A return by the deputy sheriff in his own name as deputy sheriff, is not a return by the sheriff which the court can notice. Simonds v. Catlin, 2 N. Y. Term Rep., 66.

In North Carolina, a return of the service of a writ made by the deputy sheriff' was held good, it being the immemorial custom of the state to receive their returns. McMurphy v. Campbell, 1 Hayw., 181. Peake’s Ev., 441.

(1)

A return to a summons signed by a person as “ deputy sheriff,” without using the name of the sheriff, is erroneous and void. Ditch v. Edwards, 1 Scam., 127.

If judgment by default be rendered against a defendant who has not been served with process, the proceedings are coram non judice, and in such case the cause will not be remanded. Ibid.

A return of service of a summons is good, if signed by the sheriff, although the signature has not to it anything to indicate by what authority he served the process. Thompson v. Haskell, 21 Ill., 215.

A court is presumed to know its own officers, and especially the sheriff. Ibid.

The return of an officer to a writ, is only prima facie evidence of the facts stal ed in it. Owens v. Ranstead, 22 Ill., 161.

See also on the subject of returns, the following cases : Sims v. Klein, post. Wilson v. Greathouse, 1 Scam., 174. Clemson v. Hamm, id., 176. Ogle v. Coffey, id., 239. Mitcheltree v. Stewart et al., 2 Scam., 20. Townsend et al. v. Griggs, 2 Scam., 366. Beaubien v. Sabine, id., 457. Belingall v. Gear, 3 Scam., 575. Montgomery et al. v. Brown et al., 2 Gilm., 584. Farnsworth v. Strasler, 12 Ill., 485. Sconce v. Whitney, id., 150. Morris v. Trustees of Schools, 15 Ill., 269. Turney v. Organ, 16 Ill., 43. Ball v. Shattuck, id., 299. Woods v Gibson, 17 Ill., 218. Cost v. Rose, id., 276. Boyland v. Boyland, 18 Ill., 551. Nelson et al. v. Cook, 19 Ill., 440. Orendorff et al. v. Stanberry et al., 20 Ill., 89. Beach et al. v. Schmultz, id , 185.

The sheriff's return on a summons against Samuel B. Bancroft, was as follows : “ Served the within by reading the same to and in the hearing of S. B. Bancroft, June 21, 1858." This is insufficient. It does not show whether the date refers to the time of the service or the return. Nor does it show that service was made on Samuel B. Bancroft. S. B. may be the initials of a different person. Bancroft v. Speer, 24 Ill., 227.