
    Davis et al. v. Jordon.
    Acknowledgment of service of process must be proved in order to warrant a judgment by default.
    A writ of error may issue after a forthcoming bond given, if it has not been forfeited.
    ERROR to the circuit court of the county of Wilkinson.
    Suit was instituted by the defendant in error in the circuit court of Wilkinson county, against Smith, Davis and William T. Lewis, who was then sheriff of said county, as endorsers of a note made by one H. A. Moore. The capias was directed to the coroner, but appears to have been executed, (by the return) by the deputy of said Lewis, on W. B. Davis, one of the defendants. Smith and William, T. Lewis the other defendants, acknowledged service of the writ in writing.
    Neither of the defendants having interposed any defence, judgment by default final, was taken at the return term of ,the writ. A forthcoming bond had been given by one of the parties, but does not appear to have been forfeited.
    ■' Smith, for plaintiffs in error.
    The exceptions to the'judgment of the court below, are based upon the assumption,
    1. That the service of the writ which was directed to the coroner, upon Davis, by a deputy of the sheriff, was not in law a notification to him of the pendency of the action, and therefore could not warrant the circuit court in awarding judgment by default.
    2. That the acknowledgment of service by Smith or Lewis, did not of itself constitute proof of the due execution of the process, so as to authorize the rendition of a judgment by default.
    1. Jno. Slade, the deputy of William T. Lewis, derived no authority from the writ, which was directed to the coroner, whose authority to execute process of a similar character can only exist when the sheriff himself is disqualified to act. It was not an official act of the coroner, and if it is to be regarded as an act of the sheriff, it is thought to be clearly illegal.
    
      
      2. The error indicated by the second exception is equally palpable. See Harvie v. Bostick, 1 Howard, p. 106.
   The Chief Justice:

The plaintiffs in error were sued jointly as indorsers of a promissory note. The process was directed to the coroner, but was served on one of the defendants by a deputy sheriff. As to the other two defendants the service was in these words: Service acknowledged 2d April, 1838. (signed) C. P. Smith. William T. Lewis.” A judgment by default generally was taken, which it is said was erroneous for want of service. In the case of Harvie v. Bostick, 1 Howard, a service precisely like this was held to be insufficient to justify a judgment by default, without proof of the acknowledgment. That decision is decisive of this question.

It appears that a forthcoming bond was given by one of the parties, or rather by the maker of the note with one of the parties as security. This might be considered as a bar to the writ of error, but it does not appear that it was forfeited. The statute declares that no writ of error shall be granted after forthcoming bond given and forfeited. The forfeiture is necessary to complete the bar.

Judgment reversed and cause remanded.  