
    Smith’s Administrators v. Commissioners of Licking County.
    In an action on a sheriff’s bond, judgment must be for the debt, with leave to take execution for the damages. Judgment for damages only is erroneous.
    This was a writ of error to the judgment of the court of common pleas, in Licking county, adjourned here, for decision by the Supreme Court, sitting in that county.
    This suit was brought by the commissioners against the administrators of Smith, who was security upon a sheriff’s official bond. The defendant pleaded non est factum, upon which issue was joined, and also a special plea, to which there was a demurrer. The common pleas sustained the demurrer. And upon the plea of non est factum, the jury found a verdict for the plaintiff, and assessed the damages sustained by the person for whose use the suit was brought. Judgment was entered for these damages only, and not for the debt, to have execution for the damages.
    The case was argued at large, upon the question presented by the plea and demurrer, as well as upon the form of entering the judgment.
    *Irwin, for plaintiff in error.
    Ewing, for defendants in error.
   By the Court :

There is a difference of opinion among the judges as to the validity of the plea. But as they are unanimous in the opinion that the judgment was erroneously entered, they do not decide upon the other matters. The statutory provision, in cases like this, is express, that the plaintiff shall “recover judgment for the amount of the bond, on which judgment an execution may issue for such sum as it may be ascertained will be sufficient to indemnify the person so suing.” The judgment in the case before us does not conform with this provision. It is, therefore, erroneous, and must be reversed. The court award a venire de novo, and remand the cause to the court of common pleas of Licking county, with leave to the parties to amend their pleadings.  