
    BAXTER v. ERWIN.
    (S. C., Thomp. Cas., 175-176.)
    Knoxville,
    September Term, 1858.
    1. PROCESS. Sheriff’s return is a record not to be averred against.
    The sheriff’s return of service of a summons is a record, and cannot be averred against in that cause; and if false, the remedy is by action on the case for a false return, or by a bill in equity to enjoin the judgment. [No averment iu same action against the return. McBee v. State, Meigs, 123; McCully v. Mai com, 9 Hum., 193, 194; Williams v. State, 2 Sneed, 162, 163; Gardner v. Barger, 4 Heis., 671; Wilson v. Moss, 7 Heis., 419; Bolling v. Anderson, 1 Tenn. Chy., 135. Remedy action on the case for false return. McBee v. State, Meigs, 123; McCully v. Malcom, 9 Hum., 193, 194; Gardner v. Barger, 4 Heis., 671. Remedy in chancery against judgment recovered on false return. Ridgeway v. Bank, 11 Hum., 522; Bell v. Williams, 1 Head, 229; James v. Kennedy, 10 Heis., 610, 611; Tyne v. Dougherty, 3 Tenn. Chy., 51. Testimony required. Harris v. McClanahan, 11 Lea, 184,- and cases cited.' Officer’s return of sale on execution not binding on purchaser. Mitchell v. Lipe, 8 Yer., 179, 183; Barry v. Rhea, 1 Tenn. (Ov.), 345, 348; Rogers v. Cawood, 1 Swan, 148; Brien v. O’Shaughnesy, 3 Lea, 724, 728; Hutton v. Campbell, 10 Lea, 172-175; Harlan v. Harlan, 14 Lea, 121; Hurt v. Brien, 1 Tenn. Chy., 449; Bloomstein v. Brien, 3 Tenn. Chy., 62; Wheaton v. Sexton, 4 Wheat., 503, 506; Voorhees v. Jackson, 10 Peters, 449, 477; Jackson v. Sternberg, 1 John. Cas., 153. No averment in same case against the record. 'Ridge-way v. Bank, 11 Hum., 525; Bolling v. Anderson, 1 Tenn. Chy., 135. Levy on personalty, creditor’s rights do not depend on return. Lea v. Maxwell, 1 Head, 368, 369; Green v. Lanier, 5 Heis., 678. Return of levy not contradicted collaterally. Love v. Smith, 4 Yer., 117, 126. Return on execution, explained by officer, but not contradicted. Leonard v. O’Neal, 16 Lea, 158. Return on execution not conclusive for officer’s benefit. Williams v. State, 2 Sneed, 160.]
    Cited with approval: McBee v. State, Meigs, 122; Ridgeway v. Bank, 11 Hum., 523.
    2. SAME. False return. Writ of error coram nobis does not lie for.
    Where original process is not served, but upon a false return judgment is rendered against a defendant, the writ of error coram nobis is not his proper remedy. .[Falsity of officer’s return not reached by writ of error coram nobis. Ridg’eway v. Bank, 11 Hum., 524; Bolling v. Anderson, 1 Tenn. Chy., 135. For writ of error coram nobis, see Code, secs. 4838-4846, and notes.]
    Cited with approval: Ridgeway v. Bank, 11 Hum., 523.
    3. PLEADING. Declaration against indorser..
    In a suit by the indorsee against the indorser upon a promissory note, the declaration must aver demand of payment of the maker, and notice of dishonor to the indorser, or a legal excuse for not having done so. Such omission is fatal, and is not cured by verdict. [For such defect in the declaration a judgment by default will be reversed, with right to amend. Harlan v. Dew, 3 Head, 505; Tumley v. Railroad, 2 Cold., 327; Harwood v. Jarvis, 5 Sneed, 375. See Code, sec. 4660 (2), and notes.]
    Cited^with approval: Knott v. Hicks, 2 Hum., 162.
   Wright, J.,

delivered the opinion of the court:

We are of opinion that the circuit judge did not err in this case, because we thinlc the writ issued to Dickson county, against Theodore Baxter, must be regarded as a counterpart of that issued to Robertson, against Robert Baxter and James T. Connel, and being of opinion, as we are, from tbe statement in tbe petition, that tbe plaintiff in error was in fact served with process, it was gross neglect in him not to have appeared at tbe proper time, and make defense to tbe suit.

But if this were not so, and be in fact were not served, tbe sheriff having made return tbat be was, it has become a-record, and cannot be averred against, and if false, tbe remedy of tbe plaintiff in error is by action on tbe case for a false return or by bill in equity to enjoin tbe judgment. McBee v. Tbe State, Meigs’ Rep., 122; Ridgeway v. The Bank of Tenn., 11 Hum., 523. Tbat a writ of error coram nobis is not tbe proper remedy, is settled in this latter case. But still, notwithstanding this is so, tbe case is here as to Theodore Baxter, upon tbe original judgment, and we are called upon to revise it. And we are of opinion tbat as to him, it is erroneous. He is sued and sought to be made liable as tbe indorser of a promissory note, but tbe declaration contains no averment of demand of payment on tbe makers, or tbat any notice of tbe dishonor of tbe note was given to tbe plaintiff in error, as indorser, nor is any excuse assigned for not having done so. In Knott et als. v. Hicks, 2 Hum., 162, it was held tbat such an omission was fatal, and not cured by verdict. And in a case at tbe present term we held tbe omission fatal after judgment by default, and tbat such a course of pleading was not sanctioned by anything in tbe Code. "We say this is a promisr scry note, because tbe declaration so states it, and in disposing of tbe writ of error we can only look to tbe record by oyer or bill of exceptions, and we cannot now consider whether it in truth be a promissory note, or such a writing as, under tbe rules of tbe law merchant, tbe liability of an indorser can be made to arise upon it. Tbe original judgment of tbe circuit court, as to tbe plaintiff in error, must therefore be reversed, and the cause remanded for a new trial, with leave to amend the declaration.

This necessarily reverses the judgment upon the dismissal of the petition.

Judgment reversed.  