
    Snell and Securities, vs. Rawlings.
    1. Amotion lies against a sheriff and his securities for the failure of a deputy to pay over money collected by execution issued by a justice of the peace, and for default of such deputy in not making due and proper return of execution issued by a justice of the peace and placed in his hands.
    2. In summary proceedings, the judgment must set forth the existence of a state of fa cts authorising the exercise of the jurisdiction in the rendition of such judgment.
    3. The judgment set forth as appearing to the court that Snell was sheriff, the security-ship of the other defendants, the relation of principal and deputy, and the collection of specified sums of money: Held, that the judgment was sustainable on the facts slated therein.
    4. Where the judgment stated that executions come to the hands of the sheriff without showing atwhat time, and thathe ijeglected. and failed to make dueand proper return: Held, that this was the statement ofa conclusion of law and notan exhibition of facts showing that the defendant had not made due and legal return, and therefore not sustainable.
    Rawlings, surviving partner, placed executions issued by justices of the peace in the hands of Teague, deputy of Snell, sheriff of Henderson county. Teague collected money on some of the-executions which he failed to pay over, and failed to return others.
    Rawlings made a motion against Snell, the principal sheriff and his securities, and recovered judgment against them in the circuit court of Henderson county. Snell and his securities appealed, and the question is whether the said judgments are valid on the face thereof.
    Bullock, for plaintiffs in error.
    1st. The sheriff is not bound by law to execute process issued by a justice of the peace in a civil suit, nor is his deputy bound to execute such process, for the powers and duties of a deputy are held and exercised by virtue of his appointment by the principal sheriff. The sheriff cannot be made liable for the neglect of the deputy to do any act which the sheriff was not bound by law to do himself.
    By the common law the sheriff was not bound to execute process issued by a justice of the peace in a civil suit, nor is there any statute which requires him to execute such process. Mr. Justice Blackstone in his commentaries, when speaking of the duties of sheriffs, uses the following language:
    “These are either as a judge, as keeper of the King’s peace, as a ministerial officer of the superior courts of justice, or as the King’s bailiff.” See Chitty’s Blackstone, vol. 1, 269 top paging, side paging 343. Two only, of these duties is a sheriff required, by the laws of this State, to perform. 1st. As a keeper of the peace; 2d. as a ministerial officer of the superior courts of justice. The same learned commentator defines the duties of the sheriff in his ministerial capacity in the following language: “In his ministerial capacity, the sheriff is bound to execute all process issuing from the King’s courts of justice. In the commencement of civil causes he is to serve the writ, to arrest, and to take bail: when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. In criminal matters he also arrests and imprisons, he returns the jury, he has the custody of the delinquents, and he executes the sentence of the court though it extend to death itself. See Chitty’s Blackstone, 260 top paging. We have thus shown that the sheriff’s duties by the common law, while acting in his ministerial capacity, in civil causes, is confined to the execution of the process, orders and judgments of the superior courts of jus-lice in England, to which all of our courts in Tennessee are analogous.
    In this view of the case, we are strengthened and confirmed by the opinion of this court, delivered in the case of the Union Bank vs. Low, Meigs’ Rep. 225, in which the court say: “a deputy sheriff may serve process issued by a justice of the peace.” There is no law directly conferring the power, but the usage has long prevailed, and several statutes recognize it. The acts of 1794, ch. 1, sec. 52-56, 1801, ch. 7, sec. 5, 1825, ch. 66, sec. 1, 1827, ch. 35, sec. 4, are referred to, to sustain this opinion. Having thus shown that the sheriff was not bound either by the common law, or by any statute of this State to execute process issued by a justice of the peace, the next inquiry will be whether there is any statute in force in this State which makes the sheriff liable to be proceeded against by motion, for the failure of his deputy to return an execution issued by a justice of the peace, or for failing to pay over money collected by the deputy, upon any claim, whether by execution or otherwise, under the jurisdiction of a justice of the peace.
    The act of 1801, ch. 7, sec. 5, C. N. 180. 1815, ch. 40,. 2 Scott’s revisal, 202,1817, ch. 54, sec. 2, 1823, ch. 21, sec. 1, C. & N. 182, 1827, ch. 35, sec. 4, C. & N. 669, the proper construction of which must determine the rights of the parties in this cause, do not either of them authorize this proceeding by motion against the sheriff for this defalcation of his deputy. It will be observed by the court that all the preceding statutes except the act of 1827, ch. 35, sec. 4, when prescribing the remedy against the delinquent officer and his securities, use the term “on motion, or by motion,” while the act of 1827 when prescribing the remedy given by that act, declares the liability of the sheriff and his securities shall be on their bond, not on, or by motion, as in the preceding acts giving remedies against delinquent officers for failing to pay over money collected on claims, whether by execution or otherwise, under the jurisdiction of the justice of the peace, or for failing to return executions issued by a justice of the peace. The act of 1827, ch. 35, sec. 4, cannot without a strange perversion of the language of the Legislature as used in this act, be construed to authorize a proceeding by motion, when the act itself expressly prescribes a different remedy.
    In all summary proceedings by motion, the judgment must i-ecite upon its face and assume the existence of all the facts necessary to give the court jurisdiction or it will be void: Jones vs. Read, 1 Humphrey’s Rep. 335.
    
      Porter vs. Webb & Co., Yerger’s Rep. 161: Singleton vs. Bell, Cook’s Rep. 267.
    In all summary proceedings it must be shown that the law has been strictly complied with: Rules Lessee vs. Parlcer, Cook’s Rep. 365, Malory & others vs.Miller, 2Yerger’sRep. 113, Sumner 8f Foster vs. Henry, 4 Yerger’s Rep. 155, Woodruff vs Smith and others, 6 Yerger’s Rep. 510.
    No motion for judgment will he unless expressly authorized by statute. Combs vs. Bramlett and others, 4 Yerger’s Rep. 569, Smith vs. Wells, 5 Yerger’s Rep. 202.
    
      McCorry, for defendants in error.
   Reese, J.

delivered the opinion of the court.

In summary proceedings by motion authorized by various statutes, this court has established in many cases the general principle that the same not being according to the course of common law, the court before which the motion is made must in the judgment, in order to its validity, set forth the existence of a state of facts as being shown in proof authorizing the exercise of its jurisdiction in the rendition of such judgments. It is not intended by this that the court should describe the character or specify the details of the testimony; it is sufficient that the court assume as having been made to appear to them the state of facts necessary to justify their legal conclusions. The application of this principle to the case before us will readily determine whether the judgment of the circuit court be erroneous. This is a motion to render a sheriff and his securities liable for the collection of certain monies on executions issued by justices of the peace, and for the non-return according to law of certain executions so issued, and which money was collected by, and which executions came to the hands of a deputy sheriff. The judgment recites that it “appeared to the satisfaction of the court that the said Stephen Snell was formerly sheriff of Henderson county, and the other defendants herein named are his securities as such sheriff; and that Eli Teague Was one of the regularly appointed and acting deputies of said Stephen Snell as such sheriff as aforesaid, and the said Eli Teague as such deputy of the said Stephen Snell as aforesaid, collected upon executions issued by justices of the peace on judgments upon claims under the jurisdiction of a justice of the peace, placed in his hands for collection for the use of said plaintiff the following sums of money, &c. Here the office of sheriffi the securityship of the defendants, the relation of deputy and his collection of the specified sums of money are all well assumed as appearing, or as being proved; and we think the judgment of the court upon this point of the case sustainable.

Executions are then specified as having come to the hands of said deputy without stating when; and with regard to them the judgment says that “he neglected and failed to make due and proper return.” This, we think, is not the assumption of a state of facts, but the statement of a legal conclusion. The plaintiff move for judgment for that executions came to the hands of the deputy and that he did not make due and proper return. The court finds merely that they did come to his hands without showing the time, and says that the law is with the plaintiff, or in other words, the return is not due and proper. Why not due and proper? Were they returned in fact, but with reasons for the non-collection of the money legally insufficient, or were they withheld or not returned at ,all, and how long were they in the hands of the officer? The finding of the court in this part of the case we think insufficient.

As to the question so much discussed, whether a sheriff and his securities are liable for the default of a deputy in a matter within the jurisdiction of a justice of the peace, we are satisfied that the matter is left without doubt under the statutes. Indeed it is admitted that the sheriff and his securities are liable’by motion for his own default, but it is said not for that of his deputy. Perhaps that was the opinion of some before the passage of the act of 1827, ch. 35, sec. 4. To correct which that act, which we deem declaratory of what the law was, provides that in all cases wherein a sheriff or his deputy shall collect monejr by virtue of any execution issued by a justice of the peace, or by warrant or otherwise within the jurisdiction of a justice of the peace, said sheriff and his securities shall be held liable on their bond, &c.” The motion had been previously given and the act was intended not to point out the mode of proceeding, but to make certain the extent of the liability of the sheriff and his deputies. The judgment will be reversed and modified as above.  