
    Sherrell vs. Goodrum et als.
    
    1. An execution came to the hands of Porter, sheriff. Porter’s term of service expired whilst the execution was in his hands, and before return day thereof he was re-elected . He did not, according to law, return the execution: Held, that the second set of securities was liable and not the first; aud that a judgment, by motion, rendered ag*ainst the first set, was a void judgment.
    2. A judgment by motion against a sheriff and his securities, may be void as to the sureties, and valid ns to the principal.
    Thomas C. Porter was elected sheriff of Giles county in November 1831, and gave John Porter and others as his sureties. Before his term of service had expired, to wit, in October 1833, an execution in favor of Sherrell against Perry and others, tested of the preceding September term of the court, and made returnable to tbe ensuing February term, (1834,) for tbe sum of $1177 77, was placed in his hands. His term of service expired in November 1833. He was re-elected, and gave bond with Goodrum and others his sureties. Porter collected the money, and in February 1834, (the return term,) he failed to pay over the money, or return the execution. At the Eebruary term, 1834, Sherrell made his motion against Porter and his sureties in the bond of 1831, for the sum of $879 98. Judgment was rendered against them. This judgment showed the above facts.
    A fi. fa. was issued thereon and placed in the hands of the coroner of Giles county, who levied it on the personal property of Porter, of the value of $1240. This property was never sold by the coroner, and for what reason it does not appear.
    On the 1st day of May, 1839, Sherrell instituted this action of covenant in the circuit court of Giles county, against Goodrum and others, sureties on the bond of Porter executed in 1833.. The defendants, amongst other pleas, pleaded tbe judgment rendered by motion against Porter and the sureties in the bond of 1831, in bar of the action.
    The case was submitted to a jury at the April term, 1842, Dillahunty, judge, presiding. He charged the jury, that said judgment was void on its face, for want of jurisdiction in the court to render the same as to the sureties of Porter, and being a joint judgment,, and void as to them, it was void in toto, and that neither said judgments nor any proceedings under the same; should form any bar to this suit.
    The jury returned a verdict in favor of the plaintiff for the sum of $1781 49, and the defendants appealed in error.
    jV. S. Brown, for plaintiffs in error.
    The principal question in this cause, is, as to the validity of the levy, by Isaac Mayfield as coroner of Giles county, of the execution in his hands, upon the property of Thomas C. Porter. Was this levy a satisfaction of the debt? That it -was, cannot be questioned, unless there was something behind it, affecting its validity.
    It is contended that the judgment upon which it issued was void upon its face.
    1. The circuit court charged the jury, “that the judgment against T. C. Porter and securities in favor of Thomas Sherrell, was void upon its face, for want of jurisdiction in the court to render the same; said judgment showing that it was rendered, on account of a default of the said Porter as sheriff of Giles county, after the expiration of the term for which the defendants in said judgment had become his securities, &c, — and that the said judgment being void as to the Securities of said Porter, and being a joint judgment, was void as to all,” &e.
    In this charge, it is maintained, there is error.
    The judgment referred to, it is true, is against securities of Thomas C. Porter, for a term of office, previous to the return term of the execution. But, however the judgment may be deemed, as to them (the securities) whether void or voidable — -it expressly recites; “and it appearing to the said court, now here, that the said Thomas C. Porter was sherifi for the said county of Giles, for and during the said year 1833, and from thence forward up to this time, (1835) &c.” Thus covering the proper period of time,. when the default complained of took place— and reciting that Thomas C. Porter was sheriff at the time. This, it is conceived, is amply sufficient, to malee the.judgment valid as to Porter, without reference to that part which recites the securities. For this court have decided in the case of Williamson vs. Webb, “that a sheriff is liable for any default, without reference to the bond. It need not be produced to authorize a judgment against him, &c.”
    If this case then stood against Porter alone, the recital above quoted, would be sufficient to make the judgment valid, “without reference to the bond,” as the bond “need not be produced.” Again; it is not controverted, that the securities against whom this judgment was rendered, were the securities of Thomas C. Porter as sheriff of Giles county, from November, 1831, to November, 1833 — and that the execution, upon which this-suit depends, came to the hands of Porter, as sheriff, on the 8th of Sept., 1833, for execution — and it is for not paying-over monies collected on this execution, as well as for not returning the same to the February term, 183.4, that the judgment was rendered. It is clear, then, that these first securities were not liable for the default? When was the default committed? When was the money collected on the execution, converted and used.by Porter? before November, 1833, or afterwards? under the first or second term of office? If under the first, then clearly the first set of securities were liable. As to the point of time when the default was made, it does not appear. And even if made afterwards, upon a precept previously issued, may it not be well contended, that the first securities would be liable? If Porter had collected the execution on the 15th day of October, 1833, and used the money on the same day, and the next day had died — is it not certain that his then existing securities would have been liable? And if Porter had collected the money and used it and resigned, or declined a new election, the same result would have followed. The fact that he was re-elected, does not relieve his former securities from any liability they were under. If it be true then, that the first securities may have been liable for the default complained of, upon the face of the facts recited in the judgment, then it must follow, that the judgment is at least, not void, and is onfy voidable, if indeed it be not entirely valid. If the judgment be not .void but merely voidable, it is earnestly insisted upon, that before the levy of the execution can be invalidated, the judgment must be set aside — and until then, the levy would be good, and a satisfaction in law of the debt.
    
      The judgment shows upon its face, that Porter was sheriff during the period when the default happened, and that during a part of this period, from the time the precept was received, the other defendants were his securities in office — and that they were such securities and liable as such, long enough for Porter to have collected the money, before the expiration of his first term of office. Is it not then most clear, that the judgment is not even voidable, but valid upon its face? Suppose the securities, in thebond of November, 1833, had been substituted, in the place of the others, would not the same objection to the judgment exist? It might be well urged, that they were not securities when the precept came to the hands of Porter, nor for a month thereafter, (the fact, if shown, would be that way,) and that, therefore, they should not be liable; that it should fall upon the first securities. Is it not, therefore, fair to argue, that a judgment against either set of securities, would be good upon its face, unless it showed, that the default happened, either before the commencement of the liability in the óne case, or after its termination in the other? In the absence of such showing, there would be nothing on the face of the judgment to invalidate it. It could not be said to be void, or even voidable — because so far as the court could see, the parties were liable. The fact that the default happened, either in the one term or the other, is dehors the record, and cannot be urged, except under a different proceeding, and perhaps only in a court of equity. It is, therefore, confidently maintained that this judgment is valid upon its face, both against Porter and his securities therein named, for all the purposes of any judgment.
    2. But on the supposition that the judgment was void as to the securities named therein, the next question is, would it therefore be void as to Porter also? It has already been shown that, accordingto the case of Williamsonss. Webb, the judgment recites enough to make it valid as to Porter alone — as it expressly states, that he was .sheriff of Giles county, from the 19th of November, 1833, until the time of the judgment, as well as for two years preceding.
    But can a judgment be sustained as to one, and avoided as to another defendant? be good in part and bad in part? The affirmative of this proposition, it is' believed, can be maintained.
    There is nothing in reason, or judicial propriety against it. Suppose, for example, that that pari: of the judgment, reciting the names of the securities, had been in blank — the names of the securities not mentioned. It is evident that the judgment that far would have been inoperative; but would this omission affect its validity as to Porter? It most assuredly would not, as it could prejudice the interests of no one else.
    When a judgment is partly by the 'common law and partly by statute, the judgment at common law may remain and be complete, without the other. See 1st Salir, page 24.
    But it is said, that a judgment is entire, and cannot be good in part and bad in part, but must be either wholly good or wholly bad. The force of this principle, if it be law at all, audits application to this cause must depend on what is meant by “an entire judgment.” If a judgment is entire, without regard to the character or capacity of the different defendants — then all judgments are entire — as there can be no variation in the form in which they are rendered. But it is insisted upon, that a judgment is entire, only where the liabilities of the different defendants, if there be more than one, are identical and uniform; and arise either from the same equal und ertaking, or result from the same legal implication. For example, the judgment would be entire against two joint drawers of a note, or bill of exchange, or two undertakers of any service — and would not be, against a principal and his security, where the facts of the different liabilities were recited in the judgment.
    In this case, the character in which Porter is liable, and that in-which his securities are liable, are distinctly set forth in the judgment itself. The judgment is therefore not an entire one— and may well be good in part and erroneous in part. See 2 Lili, page 100; see also, Camp vs. Laird, 6th Yer. R. 246.
    Suppose that a judgment were rendered by a justice of the peace against A. as principal, and B. as endorser, upon a note for $150 00-. Then according to the adjudications of this court, the judgment as to B. would be void, for want of jurisdiction; but would it be void as to A. against whom it might well be rendered? It is earnestly contended, it would not. There is no sensible reason conceived, why A. should be exonerated, who is the principal, clearly bound, and subject to the jurisdiction of the justice, because of an error as to B. Let the judgment be avoided as to B. and held valid as to A. Would there be any greater inconsistency in this, than in running a ca. sa. against a single judgment debtor, when there were others in the judgment? There would be the same want of conformity between the execution and the judgment in the one case as the other. Yet this court have settled in the case of Saunders fy Marlin vs. Gallahar Sf Richardson, that a ca. sa. may run against one alone of several defendants, and need not conform to the judgment, in this particular.
    3. But even if the judgment in question is void, will this court now declare it so, in the form in which the application is here made? Must it not have been set aside, in the court below, upon motion, or by writ of supersedeas in order to effect the validity of the execution and levy? For it has been decided, that “although a judgment be irregular and void, yet a Ji. fa. founded on it, is not therefore necessarily void.” See Darby's Lessee vs. Russel and Hichs, 5 Hay. R. 139.
    4. This judgment, however it may be deemed, void, voidable, or valid, was procured at the instance of the same party, and for the same cause of action, now set up in this suit — and the proceedings thereon were his own, and he ought not now to be heal'd to impeach the same. If the judgment and proceedings théreon, are ineffectual, it is the fault of the plaintiff; he might have obtained a proper judgment, as he had a clear right to the same, as against Thomas C. Porter, and the proof shows, that there was then property of Porter, sufficient to have satisfied the claim. The neglect of the plaintiff, or the misfortune of a judicial blunder, should form no excuse for him. But it is submitted, whether the levy in this case, was not in law, a satisfaction of the debt, in whatever light the judgment may be viewed? In the case of Young and Whitcomb vs. Read, 3 Yer,-298 — it is decided, that “when the plaintiff selects his mode, and gives direction to the instruments vdiich the law affords, as a means of attaining his rights, they must be pursued .to the end.” “Our system oí laws,” say the court, “in accordance with the dictates of common honesty, provides that the property of the principal debtor, shall, if possible, in all cases be made to satisfy the demand.” See act of 1820, ch. 151.
    Then the execution upon this judgment was not prosecuted; there is no further attempt by the plaintiff to make his debt; the whole proceeding upon its face, stands in full force, unimpaired by any action of the court to which it belonged. Might not the plaintiff have made his debt? Does it appear that he could not have done it? And was he_ not bound to due diligence, on account of the securities, now sought to be subjected, in this new form of action?
    Goode, for the defendants in error.
    The charge of the court was correct and should be sustained, because,
    1st. the default on account of which said judgment by motion was rendered, is shown by the face of the judgment to have occurred after the expiration of the term for which said John Porter and others, the defendants therein, had become securities of said Thomas C. Porter.
    2d. In rendering said judgment against said securities, the court exceeded its jurisdiction, and that said judgment and all the proceedings under the same, therefore, were utterly void as to said securities.
    3d. Said judgment being joint, and void as to said securities, was void also as to said Thomas C. Porter, and for all purposes was amere nullity, and it is perfectly proper to take advantage of it collaterally.
    1st. As to the time of the default. Did the default in question happen during the liability of the securities in the bond of 1831? The failure to return the execution could not have happened in that time. Porter was elected and gave bond in November 1831; the term expired in November 1833. The execution was placed in Porter’s hands in October 1833, returnable in February 1834; he was bound to return it in February, not before; there could be no default until that time arrived. Before February court, his term under the election of 1831 expired, lie was re-elected and gave a new bond, with the present defendants as his securities. If Porter had entirely gone out of office at the expiration of his term in 1833, it may be, that his securities in the bond of 1831, would have been liable for his after acts, under the act of 1811, ch. 49, sec. 1, giving retiring sheriffs two years within which to settle up their old business. But independently of that act, they certainly would not be liable; not undertaking in their bond to be responsible for a longer period than the term. Porter having been reelected was not a “sheriff going out of office,” and consequently that statute could not have any application, and the second set of securities, to wit, the defendants, are certainly responsible for all defaults happening after the execution of the second bond and Porter’s qualification.
    As to the collection of the money. When did that happen? The record is silent. When was Porter bound to pay it over? He was bound to have it at the return day of the writ. When was that? F ebruary term 1834. If he then did not pay it over, or have it ready to pay over, the default happened at that time, but not until then. At that time these defendants were his securities, and bound for his acts, and not the securities in the bond of 1831. If the former set of securities were liable, the fact of the time of the collection should have appeared on the face of the judgment. In a summary proceeding by motion, this court will not supply omissions of fact on the face of the record, but will require with strictness that every fact, necessary to give the court jurisdiction, should appear. Porter vs. Webb Sf Co. 4 Yerg. Rep. 161: Cooke’s Rep. 267: ibid, 365: Powers vs. The People, 4 J. R. 292.
    There was not then in either case, a breach of the bond of 1831, but the record shows on its face that the default of Porter happened subsequently, and whilst these defendants were his securities.
    2d. It is then insisted, that the court had no power over John Porter and others, the securities in the bond of 1831, that in rendering the judgment against them by motion, it exceeded its jurisdiction, and that as to them said judgment was absolutely void.
    
      If a court acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought even prior to reversal, in opposition to them. They constitute no justification, and all persons concerned in executing such judgment or sentence are trespassers. 2 Peters U. S. Rep. 157: 9 ibid, 224: 8 ibid, 40: 7 ibid, 413: 6 Amer. Com. Law, 323: Grigg vs. Cook, Peck’s Rep. 82: ibid, 167: 4 Yerg. Rep. 81: 6 ibid, 471.
    When a court acts under a special statute, conferring an extraordinary power, and prescribing its course, 'that course ought to be strictly pursued, and the jurisdiction ought to appear on the face of the record; otherwise the proceedings are not merely voidable, but absolutely void, as being coram non jtidice. 6 Wheaton U. S. Rep. 119: 6 Amer. Com. Law, 323: Cooke’s Rep. 267: ibid, 365: 2 Yerg. Rep. 113: 4 ibid, 161: 6 ibid, 311, ibid, 510: 2 ibid, 624.
    ’ In this case there is not an omission in the facts to confer jurisdiction, but they show on the front of the judgment the absence of all jurisdiction, as to the securities; thereby rendering it clearly void as to them.
    3d. It is next insisted that said judgment being entire, and having been shown to be void as to the securities, is void also as to Thomas C. Porter, and for all purposes; and is in toto a mere nullity. 2 Lili. 100: 2 Tomlin’s Law Dictionary, 290.
    Where a judgment is erroneous, and consists of distinct parts, it may be reversed as to one part only. Smith vs. Jansen, 8 J. R. Ill: Bradshaw vs. Callahan, 8 J. R. 558.
    But if the judgment be entire, it must be affirmed or reversed in tote. Richards vs. Walton, J. R. 434: Bronson vs. Mann, 13 ibid, 460: 14 ibid, 417: 3 (2) Saunders, 2.12, (note 4,) and numerous cases there cited.
    The last case decides, that if several defendants appear by attorney, and one is an infant, it is error, and as the judgment is entire, it shall be reversed against all. Cro. Jac. 289, and ?'cq.
    
   TuRI/ey, J.

delivered the opinion of the court.

Thomas C. Porter was elected sheriff of Giles county, in November 1831, and entered into bond for the performance of his duties, with John Porter, John Buchanan, Richard H. Allen, Ananias Oliver, Nathaniel C. Nye, Robert Yarborough and R. Oliver as his securities. He was re-elected to the same office in 1833, and entered into bond for the performance of his duties, with Daniel Goodrum, William C. Mayfield, Samuel S. Smith, Richard Briggs, Ananias Oliver, and Robert B. McLaurin as his sureties. On the 8th day of October, 1833, an execution came to the hands of said Porter, as sheriff, in favor of Thomas Sherrell against James Perry and others, for the sum of $1177 21 and cost, tested of the August term, 1833, of the circuit court of Giles, and returnable to the February term, 1834. This execution Porter failed to return as required by law, and at the February term, 1835, of said court, judgment was rendered against him as sheriff, and the persons named as his sureties in the bond of November 1831, in favor of said Sherrell, for his neglect of duty, for the sum of $782 21 and cost. Upon this judgment an execution was issued on the 23d of April, 1835, which came to the hands of the coroner of Giles county, and was by him levied on two mides, six head of horses, twenty five head of cattle, four yoke of steers, one wagon and cart, and five thousand pounds of hemp, and returned, “levied too late to sell.” This property is proven to have belonged to Thomas C. Porter, the sheriff, and to have been worth the sum of $1240. On the 1st of May, 1839, Sherrell caused a suit to be commenced in the name of Wm. Carroll, governor, for his use, against the persons named in the bond of November 1833, as sureties for said Thomas C. Porter, sheriff, with the view to charge them, for his neglect of duty in not returning the execution above mentioned in favor of Sherrell against James Perry and others, which suit he prosecuted to judgment at the April term, 1842, of the circuit court of Giles, and to reverse which, the defendants have prosecuted this writ of error.

On the trial, the judge charged the jury, that the judgment of the circuit court of Giles, rendered at its February term, 1835, in favor of Sherrell against Porter and his sureties was void, because trie defalcation for which Porter was liable, was committed by him at a period of time, for which these sureties were not responsible, but for which the sureties on the bond sued on, were — and that of consequence the levy made by the coroner on Porter’s property was no satisfaction of the demand against him, and therefore no bar to the pending suit.

This proposition involves the whole matter in dispute, and its solution will determine the case.

That the sureties in the first bond were not responsible for Porter’s neglect in returning the execution in favor of Sherrell, to the February term, 1834, of the Giles circuit court, admits of no controversy, for their liability had ceased previous to that period of time, and the liability of the sureties in the second bond been substituted in their stead; and the fact that the execution had come to his hands previously to his re-election can make no difference, for it does not appear that he collected the money, but only neglected to return it, as he was bound to do by law, which act of nonfeasance was committed in his second term of office, for which his first securities cannot be held responsible. As all these facts appear upon the face of the judgment, it necessarily follows, that it is void as against the sureties. But does it follow that it is also void as against Porter, the principal? It is argued that it is, that the judgment is entire, and being void as to some of the parties is necessarily void as to all. We deem it unnecessary to enter into a minute investigation of the common law doctrine, as to the nature of judgments, what defects will vitiate them, when (if ever) they may be sustained in part and set aside in part.

All the learning upon that subject resting upon the inflexible principle, that things not perfectly homogeneous shall not form the subject matter of a judgment, that persons not interested in the subject matter, in the same character, and upon the same principles, shall not be joined as parties, and that a failure to recover a judgment against one, shall be a failure as to all, it necessarily followed, that a judgment both as to its subject matter and its parties was so entire, that it could in no point be severed, and that if it were bad in part, that it would be bad in the whole. But such modifications, have been made by statute in more modern times, to suit the conveniences of trade and commerce and the many varied, relations arising out of them, producing such a variety of shade of interest in the same transaction, and amalgamating them together in the same remedy, that cases are constantly arising in which parties who would not have been permitted under any circumstances by the common law to join in their action, now do so readily, and subject matters of controversy, joined only by a collateral thread, and which the common law pleader would never have thought of uniting, are now readily embraced by the same declaration, so that it would be found not only injurious to, but destructive of the rationale of correct pleading to apply the same restricted principle to them.

Such are our joint suits against the makers and endorsers of bills of exchange, and promissory notes, all our judgments on motion, against sheriffs, coroners and constables and their sureties and our judgments on motion against sureties for appeals from an inferior to a superior tribunal.

In all these cases some of the parties are directly liable, and some collaterally. Suits might be brought and judgments obtained in all cases against those who are directly bound, without noticing those who are collaterally bound, but to avoid circuity and expense, the contrary course is permitted.

You may take your judgment against a drawer of a bill of exchange alone. You may take it against him jointly with the endorsers; a failure to obtain it against the endorser, does not prevent your having it against the maker, though they be sued jointly; it is time the statute giving the joint remedy also gives the several; but it may be well questioned, whether the courts would not have given it without, for there is no connection in their liability, or in the nature of the proof to charge them. In the cases of motions against sheriffs and other officers, they are the principals, responsible for their own conduct. You may take judgment against them, without noticing their securities, and it is valid — but for greater security judgment is taken against the sureties. If the judgment against them shall be void, how shall .it vitiate the judgment against the principal? can it make that bad which, would have been good, if there had been no judgment against them? Surely not; a void judgment is no judgment; it is no protection; all persons acting under it are trespassers, and the case must stand as if there had been no judgment against them.

This principle is invariably practised upon in writs of error from inferior courts. If judgments have been erroneously entered against securities, they are dischai-ged, and the judgment affirmed against the principals; and so it would be if the judgment were void as to the security, and this can be only upon the ground, that its being void as to the security does not make it void as to the principal, for if it were void in toto, it could not be affirmed in part.

We think that the judgment rendered on motion against Porter in favour of Sherrill, at the February term, 1835, for neglecting to return the execution against James Perry and others at the February term, 1834, of the Giles circuit court, was a good and valid judgment against him, though void as against his sureties. It being a good judgment, the levy of an execution thereon by the coroner upon a sufficiency of Porter’s property to pay it, is a satisfaction, and constituted a good defence to the present action.- Judgment reversed and case remanded.  