
    Goodwin, et al. vs. Sanders & Read.
    • VI* Where errors of fact are assigned, and in millo esi erratum is replied, it operates as a emurrer, and the error in fact so assignedis admitted.
    It is a general rule, that if a statulary bond is not taken in conformity with the directions of the statute, the summary remedy by motion, cannot be sustained.
    No motion will lie upon a sheriff’s bond not delivered and acknowledged in court'and recorded, as required by law to be done.
    At the February term, 1835, of the circuit court of Giles county, Chloe Sanders and Samuel I). Read, executors, &c. recovered a judgment against Thomas C. Porter, then sheriff of Giles county and the plaintiffs in error as his sureties, for the sum of seven hundred and twenty-six dollars. This judgment was obtained upon motion, without notice to the sureties, for moneys collected by Porter as sheriff. A writ of fiera facias issued upon the judgment, tested of the same term in which the judgment was rendered. The plaintiffs in error applied for and obtained a supersedeas to the execution, and at the following term of the court, moved for a writ of error coram nobis, and assigned and pleaded the following errors of fact.
    1. The judgment was rendered on a supposed bond, by motion, without notice to any of the defendants below, and that the bond never was delivered to, in or before the court, where the same is by law directed to be delivered.
    2. The judgment was founde'd on the bond, which was not taken conformably to the statute, in this, that the penalty of the bond is ten thousand dollars, when the statute requires it to be twelve thousand dollars.
    3. That the said bond was not acknowledged in the county court of Giles county, and recorded as required by law, and that therefore no judgment by motion could be rendered upon it. To the assignment of errors, the plaintiff replied innullo est erratum, upon which the circuit court gave judgment against the plaintiffs in error, from which judgment they prosecuted an appeal in error to this court.
    
      J. Campbell and Geo. S. Yerger, for plaintiffs in error.
    
      Goff, for defendant in error.
   Reese, J. J

delivered the opinion of the court. r

jn the assignment of errors corcmi nobis, in this case, it is aPggg^ tjjat judgment was rendered on a supposed bond, by motion; that the bond ivas never delivered to, in or before the court, where the same is by law directed to be delivered and executed; that the bond was never acknowledged in or before the county court of Giles county, nor was the same ever recorded. To these allegations, among others assigned as error, the plaintiffs below joined in error in nullo est erratum, and the question is, can a motion be made against the sheriff and his securities, and be sustained upon a bond, not taken by and before the justices; not acknowledged before them; not recorded in court. These facts are alleged in the assignment of errors: in nullo est erratum admits them, as would a demurrer. 2 Sanders’ Rep. 101. And if it had been proper to look into the proof under this issue, the testimony of Wilcox, the clerk of the county court of Giles, proves the truth of these allegations. The cases of Porter vs. Webb, 4 Yer. Rep. 161; Cheatham vs. Howell, 6 Yer. Rep.; Sumer & Foster vs. Henry 4 Yer. Rep. 167; and Mattery vs. Powel 2 Yer. Rep., prove in general, the principle, that if a statutary bond do not pursue the directions of the statute, the summary remedies given upon it by the statute cannot have effect. It is true, the variances from the statute, in the cases referred to, were in the terms and stipulations of the bond; in the persons to whom made payable, &c.; but the principle is the same.

In this cause, the parties not denying their seal and signature to the bond, say it was not acknowledged before, or sanctioned by the court, and it was not recorded; and they contend, that a bond taken in open court, and there acknowledged and recorded, stands verified and authenticated as a record, and may well constitute the basis or foundation of a summary proceeding by motion, against the sheriff and his securities; but that a bond taken in the mode adopted in this case, if good at all, is good only in a suit upon it at common law. How could the clerk of the county court of Giles, of a bond unacknowledged in open court, and unrecorded, give an authentic or official copy, constituting the basis of this proceeding? We think the principle of the cases referred to, embrace this case. Let the judgment of the circuit court of Giles county, in the writ of error coram nobis be reversed, and the court proceeding to give such judgment as the circuit court ought to have given, let Lthe judgment first rendered in said court be reversed, also with costs, &c. &c.

Judgment reversed.  