
    Union Bank vs. Lowe.
    Practice. Judgment — inferior jurisdiction — presumption—bill of ezception8 — ~noté filed by justice, when part of record. Thejudgment of an inferior jurisdiction will not be reversed because the record does not show the evidence upon which it was founded. It will be presumed that there was sufficient evidencé to support it. The want of evidence to sustain the judgment must be shown by a bill of exceptions. A note though filed by the justice is not part of the record, till made so by a bill of exceptions.
    Same. ¡Same — distringas—corporation. A justice of the peace in Tennessee Cannot issue a distringas, and so cannot enforce the appearance of a corporation; but he may render judgment against a defendant for want of appearance to his summons — and this, as well in the case of corporations as of natural persons; and therefore he has jurisdiction of the person of a corporation by summons alone. Aliter in England and New York, where there must be an appearance of the defendant before judgment, and where because an appearance cannot be entered by the plaintiff fora corporation, its appearance must be enforced by distringas. 2 Archbolds Pr. 106.
    SAME. Appeal — 1823, c 54, § 3. A justice is an inferior jurisdiction in the sense of the act of 1823, authorising judgment on affirmance for twelve and a half^sr cent, per annum, in addition to the judgment of the inferior jurisdiction.
    SAME. Service of process by deputy sheriff. A deputy sheriff may serve process issued by a justice. There is no law directly conferring 1he power; but the usage has long prevailed, and several statutes recognise it, 1794, cl, § 5§, 56; 1801, c7, 6 5; 1825, c 66, §1; 1827, c 35, $4.
    The fifteenth of the fundamental articles oí the Union Bank of Tennessee provides as follows — “The said Corporation shall not at any time suspend or refuse payment of any of the notes, bills, or obligations thereof; nor of any money received upon deposit in said hank, when demanded by the holder or depositor, at the place where the same is made payable, in gold or silver; and in case of such refusal, the holder of such note, bill or obligation, or the person or persons entitled to receive such money as aforesaid, shall be respectively entitled to recover interest from the time of such demand and refusal, at the rate of ten per centum per annum until paid.”
    During the late general suspension of specie payments by the banks throughout the United States, Lowe presented ai the counter of the Union Bank, five bills of twenty dollars dollars each, and four of one hundred dollars each, issued by it, and demanded payment in specie, which was refused. In consequence of this refusal, he sued the Bank before Mr. Justice Hall, of Davidson, by summons upon the twenty dollar notes, on the 9th of February, and upon the one hundred dollar notes, on the 2d of April, 1838. In the former five cases, the process was served on the president and cashier by a constable, and in the four latter, by the deputy sheriff of Davidson. His worship rendered judgments against the Bank in each case, and it appealed to the circuit court. The appeal bonds were executed by Thomas Washington, John Sommerville, and James Woods, in the former cases, and in the latter, by the two gentlemen first named and W. S. Pickett.
    In the circuit court, at May Term, 1838, on the motion of the counsel for the Bank, these nine cases were consolidated into one, and continued. At October Term, the counsel for the Bank moved to “quash the proceedings in the cause had before the justice of the peace who rendered the judgments below, upon the following grounds. 1. That as relates to four of the cases, the original process or summons appeared by the return of service thereon, to have been executed by the sheriff by his deputy, when the said process or summons was issued by a justice of the peace, and was only directed “to any lawful officer." 2. That a justice of the peace has not jurisdiction of a suit, such as this is, against a corporation. 3. That the judgments entered up in each of the cases by the justice, which are here consolidated into one suit, were void for uncertainty.” The court overruled this motion, and a jury being sworn found a verdict as follows — “that they affirm the judgment given in said nine cases by said Justice Hall; and that they find for the plaintiff $ 502 24 cents, being the amount of the judgments rendered in said nine cases in favor of the plaintiff against the defendant by said Justice Hall, together with his costs.” Upon this verdict the following judgment was entered. “It is therefore considered by the court that the plaintiff recover against the defendants, and against Thomas Washington, John Sommer - ville, and W. hi. Pickett, their'sureties in appeal, said sum of five hundred and two dollars and twenty-five cents, the amount of the judgments in said nine cases, and interest thereon from the 10th day of February, 1838, on one hundred dollars of said judgment, and interest thereon, on four hundred and two dollars and twenty-four cents, the balance of said judgment, from the 4th day of April, 1838, at the rate of twelve and a half per cent per annum, up to this day, together with his costs by him about the prosecution of his said nine suits before the justice, and the costs of said suits in this court, and that he may have his execution, &c.”
    The defendant appealed in error.
    Washington, for the plaintiff in error,
    said, 1. There is not a particle of evidence in the record, from beginning to end, to show what the cause of action was in this case, or what the verdict of the jury was founded upon. The judgments of the justice were entered upon the back of the summonses, and are thus, “judgment for the plaintiff $21 50 c.,” with a variation as to the amount in each case. No note was filed with him, nor sent up to the circuit court by him, so far as appears from the record; and, for aught that does appear, not only, the judgments of the justice, but the verdict of the jury, were entirely arbitrary, without any evidence or cause of action whatever.
    No cause of action appears to support the judgment, and be extinguished by it, and therefore the judgment is undoubtedly void for uncertainty.
    2. A justice of the peace has no jurisdiction against a corporation. The Bank did not appear in this case, or submit to the jurisdiction. The process to compel the appearance of a corporation, is first by summons, and then by distringas. A justice has no jurisdiction to issue a distringas, nor to dispose of the property distrained, and therefore it never was intended, that justices should be invested with a jurisdiction, which they could not exercise effectually. Hotchkiss vs. Religious Society of Homer, 7 Johnson, 356; Ministers &c. vs. Adams, 5 Johnson, 347; Lynch vs. Mechanics Bank, 13 Johnson, 127.
    
      3. The summonses, in four of the cases issued by, and returnable to, the justice, were executed by the deputy sheriff, in his capacity of deputy sheriff, and not by a constable. The deputy sheriff has no authority to execute process in a pivil cause before a justice. Act of 1779, c 5; Constitution of Tennessee, art. C, § 15.
    4. There was no authority to enter up judgment for twelve and a half per cent, interest from the date of the justices judgments. Such damages are not recoverable, pending an appeal from a justice; but only pending an appeal from county to circuit court, or from circuit to supreme court.
    5. The judgment is erroneous in being entered up against W. S. Picket, for the whole amount of the nine cases, thereby making him liable in five of them in which he was not surety, and also in not having been entered up against James Woods at all, when he was surety in five of them.
    E. H. Ewing, for the defendant in error,
    insisted that the decision of the court below on the motion to quash was correct.
    1. A deputy sheriff is a lawful officer, and is competent to serve process issuing from a justice of the peace: 1st the sheriff is such, he is an officer for the execution of process, and no law confines him to a court of record — no law directs that justices of the peace shall direct their process to any particular officer authorised to serve process. Several laws re-cognise the sheriff as an officer who shall serve process issuing from justices. Act of 1794, c 1, § 52, 56; 1801, c 7, § 5; 1825, c 66, § 1; 1827, c 35, § 4. If he can serve, pf course he can give a deputation, as his power of giving deputations is (in the absence of any restraint) of course coextensive with his office. Besides, a deputy sheriff is from other considerations a legal officer to execute this process. See Act of 1827, above referred to. Act of 1829, c 41, §2.
    2. The juctice had jurisdiction of the causes. If he had not, no court had, of the five first for $20 each. Jurisdiction of the circuit court being taken away by act of 1835, c 5, § 7, and they have no jurisdiction below fifty dollars. He had jurisdiction by the act of 1835, c 17, § 1, which.. Act uses the words all debts and demands, &c. "The argument is, that the justice could not compel an appearance, por could he in any case. All our proceedings in this state gre by summonses. A summons, the regular mode against a corporation was used here — no distringas is necessary; besides the bank did appear, as will be seen by the appeal, (§’C. Where a capias was the leading and the only leading process, this might have been different; now there is no compulsory process on any one, for appearance, nor could a court of record use a distringas against a corporation, which with them would stand in the place of a capias. See the New York cases cited by Mr. Washington.
    December 17.
    
    3. The judgments are as certain as they can be made.
    4. The judgment in affirmance of the magistrate’s judgments has correctly added to them twelve and a half per cent, from their respective dates. See Act of 1823, c 54, §3.
   Turley, J.

delivered the opinion of the court.

There are several questions presented for the consideration of the court on behalf of the plaintiff in error. 1. It is said, that there is not a particle of evidence in the record to show the cause of action, or upon what the verdict of the jury was rendered. This is no objection, for if there were no testimony to warrant the finding of the jury, a bill of exceptions should have been filed in behalf of the Bank, showing that it was so. 'The presumption is always in favor of the judgment, and in the absence of a bill of exceptions, a court of errors must pronounce that it was rendered upon sufficient proof. The warrants are in the usual form “to answer the plaintiff in a plea of debt, under fifty dollars, due by note.” And it never has been considered, that in such cases the note becomes a part of the record, though filed by the justice, until it has been made so by a bill of exceptions, in fact, it has been held, that it does not.

2. It has been said, that a justice of the peace has no jurisdiction against a corporation. This is true in all cases, where an appearance must be entered before a judgment can. be taken; because a corporation can only be forced to appear by a distringas, which a justice of the peace cannot issue.

The practice of the common law courts of England, and of the courts of New York, from whence the precedents in favor of the proposition contended for, are drawn, is of this character. A judgment by default can only be taken for want of a plea, not for want of an appearance. This is not, nor has been, the practice of the courts of Tennessee.

Judgmenis by default have always been taken for want of appearance, as well as for want of plea. This practice applies as well to corporations as individuals; and therefore, there is no necessity for a distringas against a corporation, notice being sufficient to warrant a judgment against it, in default of appearance.

3. It is said, that a portion of the warrants were served by a deputy sheriff, who has no authority to execute process issued by a justice of the peace, and that the motion to quash for this reason ought to have been sustained.

To this objection there are two answers. 1. The objection only applies to a part of the warrants, not to the whole, and at the first term of the circuit court, to which the appeal was prosecuted, they were, upon application of the Bank, consolidated into one case, and the case was continued. At the next term, the motion to quash for the cause assigned was made. This could only be done, by undoing what had been done at the previous term, at the request of the plaintiff in error, to wit, .separating the suits which had been consolidated; it was too late to make the motion, the motion to consolidate had waved it.

2. We think deputy sheriffs have the right to serve process issued by a justice of the peace, and this, perhaps, more by long custom than by actual law. In England, the sheriff of the county is the head of the constabulary force; he appoints them, is responsible for their acts, takes bond from them to himself, hence the word bumbailiff, viz. bond-bailiff. This being the case, it necessarily followed, that he might serve any process, which his inferior agents might serve. This practice was no doubt introduced into North Carolina from England, and from North Carolina to Tennessee, although the power of tbe appointment of bailiffs or constables was taken from the sheriff and vested elsewhere. And irf confirmation of this supposition, although we find no law au-thorising a sheriff or his deputy to serve process, issued by a justice of the peace, yet we find laws, making them res^ ponsible for not doing so and making due return thereof.

4. It is said, there was no authority for the circuit court, to enter a judgment for twelve and a half per cent, damages upon the appeals from the justice of the peace.

We think that the acts of 1823, c 54, § 3, authorises this amount of damages. It says that in all appeals hereafter to be taken from an inferior to a superior jurisdiction, when the judgment of the inferior jurisdiction shall be affirmed, the plaintiff shall recover, in addition to the judgment of the court below, at the rate of twelve and a half per cent, per annum thereon, up to the time of the rendition of the judgment in the court above. The justice’s court is certainly an inferior jurisdiction, and the circuit court a superior one.

5. It is said the judgment is erroneous in being entered up against W. S. Pickett, for the whole amount claimed against the Bank, when he was surety only for a part of the appeals. This objection is well taken, and the judgment must be reversed and rendered against the persons properly liable for the payment of the same.  