DEWAR against SPENCE, 2 Whart. 211

The opinion of the court was delivered by Rogers; J. At the common law,' it was not usual to put the sheriff’s name, to returns; for when a writ was returned, it was intended to be by the officer of the court, whose duty it was to make it; and for this reason it was held that such omission was not erroneous. Egerton v. Morgan, (1 Bul. 73;) Scroggs v. Spencer, (Cro.

Eliz. 704.) Rut by the statute of 12 Edw. 2, c. 5, it was provided, that from thenceforth “ sheriffs and other bailiffs that receive the king’s writs, returnable in his court, shall put their names with the returns, so that the court may know of whom they took such returns, if need be: and if any sheriff or other bailiff leave out his name in his return, he shall be grievously amerced, to the king’s use.” It is not very clear what was the specific evil of which complaint was made in parliament, which produced the stat. of Edward, b.ut the probability is, that it arose from the fact that in, some counties there were two or more sheriffs, appointed in. different modes, and of whose-appointments no certain record was made; for it must be remarked that the statute does not extend to coroners, who are elected,, and about whose appointment no uncertainty exists.

It appears by the report of the judges, that that part of the statute of Edward, is in force in this state, which obliges the sheriff and other officers to sign their names to the return of writs.. The first question raised by the plaintiff in error, depends upon the. construction of this statute, and mainly rests on its authority. It is contended that the omission of the sheriff to sign his name to his return, renders the proceedings void; whilst on the other hand, it is insisted, that it is erroneous merely, and amendable, and that the sheriff, in. the language of the statute,, shall be grievously amerced..

And on. this point, it is. very clear that the distinction is taken in all the authorities which have been cited, between the return of the writ album breve, which is no return at all, and an insufficient or mis-return,. In. the former it is void; but in the latter it is erroneous, and as such is amendable, either at the common law or by the statutes of amendments. Stainer v. James, (Cro. Eliz. 311.) Young v. Wilson, (Cro. Eliz. 309.) The point therefore is, whether this falls within the former, or latter class of cases.

In Dalton, it is said, that where the sheriff or other officer returns a writ, he ought always' to endorse his name on the writ, otherwise it is an incurable error, and it has been so adjudged,;; (although it has been objected, that in case of a distringas or venire which are judicial processes, it may be amended,); for as the court there observed, the sheriff’s name not being to it, it is no return. But in The Queen v. The Archbishop of Canterbury, (1 Leonard, 139,) the law is ruled otherwise.

The case was this; The queen brought a quare impedit against the archbishop of Canterbury, the bishop of Chichester, and the incumbent, and counted that Ashburton was seised of the advowson; and that he was outlawed in an action personal, at the suit of such a one, and showed the whole outlawry certain. And exception was taken to the count, because in setting down the outlawry, the process is alleged to be returned by the sheriff, but the name of the sheriff is not there expressed.

And as to that, it was agreed by the court, that the truth is, that it is provided by the statute 12 Edw. 2, c. 5, that the sheriffs in their returns, put the names to their returns; but it is not required so to plead it,for the omitting thereof doth not make the record, void, but the sheriff shall be amerced. And in Dalston v. Thorp, (Cro.

Eliz. 767,) which was error of a judgment in the court of Common Pleas, in debt, upon an escape, the error assigned was,,for that the original writ had not the sheriff’s name to the return thereof, according to the statute of York, 12 Edw. 2; and for this cause it was moved that it was error, and the judgment reversable.

But in regard the defendant had appeared, and the plaintiff had counted against him upon the record of the recovery, and the defendant had pleaded nul tiel record, it was holden not to be material, although the writ had not been returned; for he shall never take advantage (after appearance and pleading,) of such misprision, nor of the mis-awarding of mesne process; wherefore judgment was affirmed. In the latter case, unlike the case in Leonard., the point is not directly decided, but the court put the omission on the ground of a misprision which is always amendable.

These decisions we consider to be the better authority, because they are more in accordance with the spirit and intention of the act, than the opinion intimated in Dalton.

The statute was intended, as is ■ stated in the act itself, to'remedy an inconvenience which had arisen from the omission on the part of the sheriffs, to put their names with their returns, so that, if need be, the court did not know by whom the returns were made; for remedy whereof the statute provides, that the sheriff who is in default shall be grievously amerced; but it is no where intimated, nor did the mischief which the statute designed to remedy require it, that the return on account of such omission, should be void.

Such a construction would sometimes operate with great severity on parties and innocent purchasers, who are in no default, who would be bound to a critical examination of sheriffs’ returns; a practice which has never been thought necessary in this state, and on which many titles may depend.

It was required at common law, and is equally necessary since the statute, that a return should be made by the sheriff, or by some person in his name; and for this reason it has been held, that returns album breve, that is to say, where the writ has never been in the hands of the sheriff, or where he has refused or neglected to return it, are void; but this is not so, where a return has been actually made, either before or since the statute. The plaintiff in error has cited Rowlands case, (5 Co. 41.) Stainer v. James, (Cro. Eliz. 311.) Young v. Wilson, (Cro. Eliz. 309.) Wears v. Woodliff, (Cro.

Eliz. 466,) and Rogers v. Smith, (28 Eng. Com. Law Rep. 204;) and in all of them, as well as in the cases cited by the defendant in error, a distinction is taken between a return of a writ album breve, and an insufficient or mis-return. The court put them on the ground, that they are returns album breve, and it is conceded that if they were insufficient returns, they would be erroneous and amendable.

This was a judgment by default, and if there was no return made by the sheriff of the writ, it would be the duty of this court to reverse the proceedings; but if a return was made, although deficient in this requisition of the statute, no. such necessity is imposed upon us. Without insisting on the statutes of Jeofails, we are of the opinion that the act of 1806, is sufficiently comprehensive to embrace this case.

That act is highly remedial, and. has been applied to cases, which although not within its .letter, are within its spirit, and has been ruled to cure all matters of firm, in actions real, personal, or mixed. Thus amendments have been made in ejectment, and what perhaps is still more pertinent, in an assize of nuisance, which is a real action. Barnet v. Ihrie, (17 Serg. & Rawle, 174.) But did the sheriff make a return of his writ s Of this we have no doubt. The return is usually made on the back of the writ, but this is not absolutely necessary.

The statute requires that the name of the sheriff shall be put with the return.

On the back of the writ, which is regularly filed in the proper office, we have this endorsement made, by legal intendment, by the sheriff himself, or by his authority, “ nihil habet, and published as the law directsand in another part of the record, which we are not at liberty to disregard, because it is returned with the record and forms part of it, we find this entry: “ And now the Sheriff of Philadelphia county makes return to said writ, nihil habet, and published as the law directs.” Now although the return is not according to the form prescribed, yet sufficient appears to show, that, in truth, a return was made to the court of the service of the writ by an officer, having authority to make the return.

In addition to this, this return is recognised by the sheriff himself; for to the writ de partitione facienda, he returns that he went, in his proper person, to the premises, and that the parties to the same were severally warned. We cannot, therefore, avoid .the conclusion, that a return was made of the service of the writ; and from this it results that this was an insufficient or misreturn, which is amendable. It is further contended, that the court erred in permitting Andrew B. Spence, the plaintiff in partition, to take the property at the valuation. It is said that the court should have ordered a sale.

But I cannot perceive what power the court would have, under the circumstances of this case, to decree a sale; for this can be done only where none of the parties agree to take the land at the valuation; and the order, by the express directions of the act, must be at the instance of the demandant himself. But here one of the parties, the demandant himself, s.o far from applying for an order of sale, prays the court that he. may be. permitted to take the property at its appraised value.

If, then, the court were in error in adjudging the property to him,, it follows that the proceedings in partition must end,, when ope or more of the parties reside out of the. commonwealth, upon the confirmation of the return of the inquest; which would be in opposition, to the. intention of the acts, which, were designed to afford a speedy remedy to. the demandant, in causing partition to be made among the ownqrs, whether they pesidfed within the state,, or in. a foreign country..

Nor is. it percqived that any injustice will flow froin this, construction, as the presumption is, that the property has been appraised at its full value; and the rights of owners can be. as well, if not better secured, than they would be when the property was sold in the absence of the parties in interest, at public auction.

The publication which is directed in the supplements to the act concerning writs of partition, is the only notice which the legislature deemed necessary, where one or-more of the owners resided out of the commonwealth, and is made as good and effectual, as a personal service.; on such, service the parties are in court,, and are deempd, to have notice, not only of the. writ of partition,. but of all ulterior proceedings which may be necessary, until the final consummation of the cause.

Whether the other parties are willing, to take the property at the. valuation, or not, is immaterial ; as the courts are expressly empowered, in all events, to determine to whom the lands and tenements shall be conveyed. The other errors depend on questions of fact, properly determinable by the court below, and are not the subjects, of error in this pourt.. judgment affirmed..