
    Atkins vs. Murphey.
    Where judgment ivas renderedon motion against a sheri.T for the penalty of one hull-* iired and twenty-five dollars, given by the act of 1777, c. 8, $ 7, for failing to returna capias ad respondendum'. It was held to be erroneous and irregular, because it did not appear by the judgment, that the party making the motion, and in whose favor judgment tons given,- was the plaintiff in the writ; anil because, it did not appear the capias ad re-spondendum was returnable to the couvt in which the motion was made.
    In this case, a motion was made in the circuit court-of Perry county, against the plaintiff in error , as sheriff of Stewart county, by the defendant in error, for failing to return a capias 
      
      ¿id respondendum, to recover the penalty given by the act of 1777 c. 8, § 7. The judgment nisi, is in the following words: “On motion of Daniel D. Murphey, the plaintiff, by his attorney, and it appearing to the satisfaction of the court, that a capias ad respondendum, had been put into the hands of defendant, as sheriff of Stewart county, twenty days previous to the sitting of this term of this court, and he having failed to make due return of the same; it is therefore considered by the court, that judgment for one hundred and twenty-five dollars, be entered up against him nisi, unless he come forward at the next term of the court and show cause why judgment final should not be entered against him.”
    Upon this judgment a sci. fa. issued, and having been returned “executed,” a final judgment by default was rendered for the one hundred and twenty-five dollars.
    
      G. S. Yerger, for plaintiff in error.
    
      JVo person appeared for the defendant.
   Green, J,

delivered the opinion of the court.

The judgment nisi does not sufficiently set forth the facts upon which the court proceeded to render judgment. It has always been holden, that in these summary proceedings, the facts necessaryto give the court jurisdiction, must be set forth in the judgment. Hamilton’s lessee vs. Burum, 3 Yerger’s Rep. 355: McCarroll vs. Weeks, 2 Ten. Rep.: Porter vs. Webb, 4 Yerg. Rep. 161.

In this judgment nisi, it is not shown who were the parties in the writ of capias ad respondendum, and consequently it does not appear that Murphey had any right to make the motion. He alone is entitled to the penalty given by the act of 1777, c. 8, § 7, who is grieved, by the failure of the sheriff to do his duty. It must therefore appear that the party making the motion was the plaintiff in the writ, for otherwise he could not be the party grieved.

It is not shown in the judgment, that the capias ad respon-dendum was returnable to the Perry circuit court, where the motion was made, and as by the act of 1777, c, 8,§ 7, the motion is authorised to be made only in the court to which the process is returnable, the omission, to show to what court it was returnable, is fatal. Let the judgment be reversed.

Judgment reversed.  