
    Williamson vs. Webb.
    1. Where the sheriff permitted a defendant in a ca. sa. to escápe and motion was made against such sheriff under the act of 1803, ch. 18, sec. 3, for the amount of money specified in the ca. sa.: Held, that it was not necessary for the plaintiff to produce the sheriff’s bond to authorise a judgment against him; his election, qualification, execution of a bond constitute him sheriff, and as such he is liable without reference to the bond.
    2. The cause of action existed against the sheriff, so soon as he permitted the defendant in the ca. sa. to escape, and if a recorded bond was offered at the time of the trial, it was admissible evidence against the sheriff and his securities, though it may not have been recorded at the time of the malting of the motion.
    William Williamson recovered a judgment at the February term, 1839, of the circuit court of Giles county, against Joel S. Carter, for the sum of $ 150 damages and $65 costs. On this judgment a ca. sa. was issued on the 23d January, 1840, which came to the hands of J. A. Jackson, a deputy of the sheriff of Giles county, Thomas S. Webb. Jackson arrested Carter by virtue of this writ, on the 15th day of February following, and took the bond of J. S. Carter and M. Carter, in the sum of $359,' conditioned that Joel S. Carter should “appear before the judge of the circuit court of Giles county, at the court house in the town of Pulaski, on the third Monday in February, 1840, to answer W. Williamson of a plea of damage, that he render to him the sum of $ 150 damages and $65 costs, and then and there to satisfy the judgment of the court, or render himself to the custody of the sheriff.” Upon the execution of the bond Carter was discharged by the deputy from custody. It does not appear that any proceedings were had at the Febru-ry term, but at the June term, 1840, Williamson, by his attorney, moved the court for judgment against Webb, “as of the February term,” for suffering the said Joel S. Carter to escape. The plaintiff z-ead the ca. sa., the bond taken by Jackson and the sheriff’s bond, and introduced Jackson, who proved the arrest, and discharge. There was no certificate to the sheriff’s bond showing, that it had been recorded.
    The, defendant then introduced the clerk of the county court, who testified, that the sheriff’s bond had not been recorded till the 2nd day of March, 1840, and after the motion had been made. Dillafiunty, the presiding judge, gave judgment in favor of the defendant, from which judgment the plaintiff appealed in error to the supreme court.
    
      Combs, for plaintiff.
    1. The bond taken by Jackson was void. Vide act of 1824, ch. 17: 1825, ch. 57, N. & C. 394, directing how ca. sa. bonds shall be taken. The bond taken in this case, not being authorised by any statute, was wholly unavailable to the plaintiff in the execution and the taking of such bond and discharge of the defendant thereupon was an escape. 3 Haywood, 144.
    2. The plaintiff has his remedy by motion. Vide act of 1803, ch. 18, N. & C. p. 294.
    3. The sheriff himself would be liable, though his bond were not recorded,
    
      Neil S. Brown, for the defendant.
    1. By the act of 1777, ch. 8, sec. 2, it is provided, that “said bond, (the bond of the sheriff) every county court is hereby required and empowered to demand, and take and cause to be acknowledged before them in open court and recorded; and upon a breach of the condition of such bond, the party or parties injured, may maintain an action thereon.”
    This is one of the requisites laid down by the act which prescribes, that the sheriff shall give bond, and is a part of the same section; and this court have'decided, “that if a statutory bond do not pursue the directions of the statute, the summary remedies given upon it by the statute cannot have effect.” See Goodwin vs. Sanders and Read, 9 Yer. 91; also, Porter vs. Webb, 4 Yer. 161; and Cheatham vs. Howell, 6 Yer. 311.
    Now the record shows, that at the time the motion was made in the circuit court, the bond of the sheriff was not recorded, “and how,” in the language of this court, (in the case of Goodwin vs. Sanders and Read, above cited) “could the clerk of the county court of Giles, of a bond unacknowledged in open court, and unrecorded, give an authentic or official copy, constituting the basis of this proceeding?” It is true, the bond was j^gor^gd afterwards, and before the motion was finally heard, bjíohe-ga^MSPÍKps entered, the suit commenced, bottomed upomthir bond, asrt^pkwas. If a summary remedy cannot be had against.», dmriff, upcm his unrecorded bond, can the recording of tip bond, árleüIlfltM commenced, have a retrospective effect, andun^ j jüiabgood arm operative, which otherwise would be null an^voidf Jf
    
    This court have decided, in the case of Goo&tS^^mSs^mers and Read, “that the principle is the same, where the variances from the statute, were in the terms and stipulations of the bond, in the persons to whom made payable, &c. as where the bond had not been recorded.” Now suppose a sheriff were to give a bond, payable to the secretary of State, and a motion were made against him upon it, and before the motion was disposed of by the court, the sheriff were to correct his bond and make it payable to the Governor, or make a new bond payable in like manner, could the motion be sustained, and could judgment be properly rendered under such circumstances? Certainly not.
    At the time the motion was entered, there was no sheriff’s bond, for all purposes of summary remedy. The question might be different, if the motion had even been withdrawn and entered anew after the bond was recorded.
    2. Again, it does not appear upon the face of the record, that the sheriff’s bond has ever been recorded. It has been exhibited, and made a part of the record, but the clerk’s certificate does not appear upon it. “In a proceeding by motion against the sheriff for the non-return of process, under the act of 1803, ch. 18, every fact necessary to a recovery, must appear upon the face of the record, to give the court jurisdiction.” See Porter vs. Webb, 4 Yer. 161.
    The bill of exceptions states, that the bond was recorded after the motion was made, but before it was decided by the circuit court; but the bond itself, which is pretended to be exhibited, does not show the fact. The case then, before this court, is, as though the bond had never been recorded and the mere statement of that fact, in evidence, cannot supply the defect.
   Gk.een, J.

delivered the opinion of the court.

This is a motion against the defendant, sheriff of Giles county, under the act of 1803, ch. 18, sec. 3, which authorises a judgment by motion against a sheriff, who shall permit a defendant to go at large, that has been arrested by virtue of a ca. sa.

There is no dispute, but that the defendant in the ca. sa. was arrested and then permitted to go at large, nor is it contended that the bond, which was taken by the sheriff, is of any force. The motion was made at the June term last, but the record says it was entered then, for the preceding term. It appears from the testimony of the clerk of the county court, that the sheriff’s bond was not recorded until after the February term, but was recorded before the June term. It is insisted, that as the bond was not recorded, until after the motion was entered, although the record was regularly made before it came on to be heard, and determined, the motion must fail.

We cannot concur with this argument. The default of the sheriff, constitutes the cause of action, and not the recording the sheriff’s bond. That was only necessary as evidence to authorise a judgment against the securities, and if before the trial, it were done, and a certified copy of the bond exhibited, that would be sufficient. But whether the bond had been recorded or not, the sheriff himself would be liable. His election, qualification and execution of a bond, constitute him sheriff, and as such, he is liable for any default, without reference to the bond. It need not be produced to authorise a judgment against him; so that, in either view of the case, a judgment shouldhave been rendered for the plaintiff. The judgment will be reversed, and this court proceeding to render such judgment as the circuit court should have given, order that judgment be entered for the plaintiff, for the debt and costs mentioned in the ca. sa.  