
    *James Graham v. Matthew Allen.
    Where a rule is served on the sheriff for not making money on a ji. fa., he cannot defend himself "by objecting to the manner in which the verdict against the defendant was recorded.
    Where a defendant pleads non, est factum to an arbitration bond, the amount of damages is not put in question.
    The plaintiff obtained ajrule against the sheriff, to show cause why an attachment should not issue against him for not making the money under a writ of fi. fa.
    
    It appeared that the action had been brought upon an arbitration bond, to which the plea of non eat factum had been pleaded. The case went to the jury on this issue, and they found a verdict for ten cents. Judgment was entered up for the penalty of the bond, and execution taken out of the amount of the award made by the arbitrators Two years and upwards had elapsed since the judgment had been, entered up. The sheriff having been instructed to that effect, abstained from selling under thefi.fa. for a supposed irregularity in the proceedings.
    The case came before Mr. Justice Gantt, in the Spring Term of 1820, for Georgetown district, and the rule was discharged.
    The plaintiff appealed, and assigned for it, the following reasons :
    1. That it is not competent for a sheriff, when a rule is served upon him to defend himself by objecting to the manner in which the judgment against the defendant was recorded.
    2. After judgments have been acquiesced in, for several years, it has not be.en the practice of the Courts to suffer them to be disturbed on account of any merely formal objections which may be urged against them.
   The opinion of the Court was delivered by

Gantt, J.

On the hearing of this rule, I was of opinion that, as the record had been submitted to a jury, and they had assessed ten cents damages, that the execution *eould not regularly have been taken out for a larger amount, but in this opinion I am satisfied that I erred. A plaintiff is not bound to have the damages assessed before he takes out execution. The language of the Act is, “he may,” and the Act also provides, that when the defendant shall deem it necessary, “he may” compel the plaintiff to submit the measure of damages to a jury. In this case, the question of damages was not submitted to the jury. The defendant did not, by bis plea, deny that an award had been made. He only denied that the bond was his. The Court are unanimous, that the decision of the presiding judge should be set aside, and that the rule be made absolute, against the sheriff.

Hott, Johnson, Rjchaiidson and HugeR, JJ., concurred. 
      
       2 Mill C. R. 151; Harp. 480; 4 Strob. 358; 7 Stat. 280.
     
      
       Ante, 625.
     