The Opinion of the Court was delivered by
Lockwood, J.*This was an action of assumpsit, commenced in the Circuit Court of Peoria county, by Purple against Moore. The declaration contained two- counts, one on a promissory note, the other for money had and received, and work and labor.
At the October term 1845, the defendant, having failed to plead, his default was entered, together with interlocutory judgment, and the sheriff was thereupon commanded, that by the oath of twelve good and lawful men of his bailiwick, he diligently inquire what damages the plaintiff has sustained by reason of the premises, and that he return the inquisition, which he shall thereupon take, to the present term of this Court, together with the names of those by whose oath he shall take that inquisition.
It appears by the record, that a writ of inquiry was issued by the clerk to. the sheriff of the county, dated the 17th of October, 1845, which was returned into Court by the sheriff on the same day with the following indorsement, to wit: “We, the jury summoned in this cause, after being duly sworn, do assess the plaintiff’s damages at $148'98;” which return was signed by all the jury.
On the return of the writ of inquiry, indorsed with the verdict, the Court below gave judgment for Purple for the amount assessed by the jury.
Moore prayed and obtained an appeal to, and filed the record at the last term of this Court, and assigned his errors.
At the last term, Purple filed an affidavit, stating that the sheriff of Peoria county, through inadvertence, had neglected to make any formal return upon the writ of inquiry, and prayed the Supreme Court to continue the cause, to enable him to apply to the Circuit Court of Peoria county for leave to the sheriff to make the proper return upon the writ of inquiry, and that when made, the same may be certified to this Court, as a part of the record in this case.
This motion was granted.
At this term of this Court, Purple obtained leave to file, as part of the record in this cause, the proceedings of the Circuit Court of Peoria county at the May term 1846, from which it appears that Purple obtained leave of that Court, at the May term thereof, for the sheriff to amend his return to the writ of inquiry, which was done as follows, to wit: “By virtue of the within writ, I did, on the 17th day of October, A. D. 1845, summon the following named persons, to wit, [naming them,] twelve good and lawful men of the county of Peoria, who, after being duly sworn well and truly to assess the plaintiff’s damages, returned into Court the verdict by them below subscribed, assessing said damages at $148-96. Smith Frye, Sh’ff, P. C.”
At the December term 1845, of this1 Court, the plaintiff in error assigned several errors, relying principally on the grounds that there had been no legal assessment of the damages, and that the defendant below had received no notice of the execution of the writ of inquiry. Since the filing of the proceedings of the Circuit Court at the May term 1846, the plaintiff has assigned the following additional errors, to wit:
1st. That there was no notice of the motion to amend'the record of the Circuit Court, or for the officer to amend his return to the writ of inquiry;
2d. That the writ of inquiry does not appear to have been executed in open Court; and
3d. There was no sufficient writ of inquiry to authorize the inquiry into the assessment of the plaintiff’s damages.
All the errors relied on to reverse the judgment below can be disposed of under the last assignment of errors. And, first, was it necessary that notice should have been given to Moore to authorize the Circuit Court to allow the sheriff to amend his return. We think not, for two reasons. 1st. Amendments by the sheriff to their returns to process are of course. No resistance could have been made to the application to amend. Should the sheriff make a false return, he is responsible for the consequences.- 2d. If, however, notice was necessary, -Moore, by his counsel, being in Court when the continuance was granted, was fully apprised of the intention of Purple to move the Circuit Court for leave to the sheriff to amend his return. This was sufficient notice. The question raised by the second assignment of error was investigated and decided by this Court in the .case of Vanlandingham v. Fellows, 1 Scam. 233, We there held that a writ of inquiry might be executed before the sheriff at any place within the sheriff’s bailiwick, and that should any irregularities take place, such as want of notice, &c. the proper course would be, to apply to the Circuit Court upon affidavit of the facts to set aside the inquisition. Want of notice cannot, therefore, be assigned for error in this Court. The third error is also addressed to the wrong forum. If the writ of inquiry was not sufficient, application should have been made to the Court below to quash it. The insufficiency of the writ of inquiry cannot be assigned for error. The judgment is affirmed, with costs.
Judgment affirmed.
Young, J. did not sit in this case.