
    *Bowyer v. Hewitt, Ruffner & Co.
    July Term, 1845,
    Lewisburg.
    1. Appellate Practice — Rejected Plea — Bill of Exceptions. — No exception having been taken to an opinion of the Court rejecting a special plea offered by the defendant, the correctness of that opinion cannot be enquired into in the appellate Court.
    2. Scire Facias against Bail — Judgment upon. — Upon a scire facias against bail, it is error to give a judgment for the aggregate amount of principal, interest, and costs of the first judgment, with interest thereon.
    3. Same — Function of Jury — Province of Court. — Upon a trial on scire facias against bail, the function of the jury is exhausted when it negatives the defendant’s plea; and it is then the province and duty of the Court to enter up a judgment according to the scire facias.
    
    
      4. Same — Verdict—Erroneous Finding. — If in such a case the jury proceed to find a verdict for the plaintiff, and find a sum differing from that stated in the scire facias, it is merely supererogatory; and the Court should give judgment for the proper sum.
    5. Same — Excessive Judgment — Appellate Practice.— The Court below having given judgment for the plaintiff in a scire facias against bail, for too large an amount, this Court will reverse the judgment, and enter judgment for the proper sum.
    In October 1840, Hewitt, Ruffner & Co. sued out of the clerk’s office of the Circuit Superior Court of Law and Chancery for the county of Kanawha, a writ of scire facias against John Bowyer, as the special bail of W. Atkison and B. J. Caffrey, in an action brought against them in that Court by the same plaintiffs, in which they had recovered a judgment against the said Atkison and Caffrey, for 574 dollars 92 cents damages, with legal interest thereon from the 7th day of December 1838, till paid, and 9 dollars 69 cents costs.
    The recognizance of bail was taken by James Y. Quarrier, the deputy of Daniel Ruffner, high sheriff of the county; said Ruffner being one of the plaintiffs in the action.
    Upon the return of the writ of scire facias Bowyer appeared in Court, and pleaded, first, nul tiel record ; second, payment; and then offered four special pleas, the purpose of which was, to raise the questions, whether *tbe recognizance of bail could be taken by a deputy sheriff; and whether the recognizance was not void, for the reason that it was taken by the deputy of Ruffner, who was a partj’- plaintiff in the action. These special pleas were rejected by the Court, and no exception was taken to the opinion of the Court rejecting them.
    The Court decided the plea of nul tiel record in favour of the plaintiffs; and a jury was impaneled to try the issue on the plea of payment, who returned a verdict by which they found for the plaintiffs the sum of 647 dollars 85 cents, with legal interest from the second day of October 1840, till paid; and the Court entered up a judgment accordingly.
    From this judgment, Bowyer obtained an appeal to this Court.
    C. & G. N. Johnson, for the appellant.
    The judgment against the principal debtors, was for 574 dollars 92 cents damages, with interest thereon from the 7th of December 1838, until paid, and 9 dollars 69 cents costs.
    The scire facias against the bail requires him, in the usual form, to shew cause why the plaintiffs ought not to have execution against him for the damages, interest and costs aforesaid.
    Yet the verdict of the jury and the judgment of the Court upon the scire facias, is for the sum of 647 dollars 85 cents, with legal interest thereon from the 7th October 1840, besides the costs of the scire facias.
    Nothing is better settled than that the judgment upon the scire facias must pursue strictly the original judgment. The form and the nature of the writ shew this. It is but a mode of obtaining execution upon the original judgment, either against the same party, or against some other party, who has become bound for the same debt. The jury have only to enquire whether the atleged cause why such execution should not be taken out, exists or not. They cannot, in any form, give damages-*for the detention of the debt, or look behind, or vary from the original judgment.
    The Court could not even add to the original judgment the costs of the scire facias, until specially authorized to do so by statute. See 6 Bacon’s Abr. “Scire Facias,” A. p. 103, H. p. 125; Ibid. D. p. 121, 122, 123; Henriques v. The Fast India Company, 2 Strange 807; Cosby v. Bell, 6 Munf. 282.
    According to all the authorities, this error is one for which the judgment must be reversed with costs. See, in addition to the cases in 2 Strange, and 6 Munf., above referred to, Stowers v. Smith, 5 Munf. 401; Jacobs v. Hill, 2 Leigh 393; Scott v. Tank-ersley, 10 Leigh 581.
    If this were a case merely for the Court, as the three cases last cited, which arose upon motions, or if the erroneous part of the judgment were distinct and severable, as in the case in Strange, the Court might (as far as this error is concerned) reverse the judgment, and render instanter such judgment as ought to have been rendered. But as the verdict is one entire thing, for one entire sum, and the Court can in fact only conjecture the cause of the error, we presume the case ought to be sent back for a new trial, especially if it should appear that the record does not now fairly present the merits of the case to this Court.
    II. We contend that as the high sheriff of Kanawha, by whom the original writ against the principal debtors was served, and the recognizance of bail taken, was himself one of the plaintiffs in the cause, he had no authoritj' to serve the writ or take the bail bond — so that the recognizance is void. This defence was raised by the special pleas which were offered and rejected. For this proposition of law, see 7 Corny’s Dig. “Viscount,” F. 1; Weston v. Coulson, 1 Win. Bl. 560.
    Some of the old authorities, however, it must be confessed, throw some doubt upon the question. See Dalton’s 196 *Sheriff, ch. 20, p. 97; 19 Viner’s Abr. “Sheriff,” P. p. 443.
    3. Can the sheriff well act by deputy in taking the recognizance of bail, as is alleged to have been the fact in the 3d and 4th special pleas.
    This objection rests upon the principle that taking a recognizance is a judicial, not a ministerial act; and such acts the high sheriff cannot perform by deputy without the express sanction of law. See Comyn’s Dig. “Viscount,” C. 1, p. 525.
    Summers, and B. H. Smith, for the ap-pellees.
    1. The error in the verdict may be corrected by this Court. Tate’s Dig. 144; 1 Rev. Code, ch. 128, § 109, 110; Kent v. Matthews, 12 Leigh 573.
    2. No exception being taken to the opinion of the Court rejecting the special-pleas, this Court cannot enquire into the correctness of that opinion. White v. Toncray, 9 Leigh 347; Herrington v. Harkins, 1 Rob. R. 591.
    
      3. The third point made by the counsel for the appellant is open to the same answer as the second. On the merits, it is answered by the statute of the 4th of March 1826, ch. 22, § 2, Sessions Acts 182S-6.
    
      
      BiII of Exceptions — Rejected Plea — Record.—A plea stricken out by the court forms no part of the record on appeal unless preserved in a bill of exceptions. Fry v. Leslie, 87 Va. 269, 12 S. E. Rep. 671, citing White v. Toncray, 9 Leigh 347; Herrington v. Harkins, 1 Rob. 591; Bowyer v. Hewitt, 2 Gratt. 193; Roanoke Land & Imp. Co.- v. Kara, 80 Va. 589; Morrisett’s Case, 6 Gratt. 673; Lawrence’s Case, 86 Va. 573, 10 S. E. Rep. 840; Offtendinger v. Ford, 86 Va. 917, 12 S. E. Rep. 1.
      The principal case is cited for this point in Lawrence v. Com., 86 Va. 579, 10 S. E. Rep. 840.
      Thus in White v. Toncray, 9 Leigh 347, and Her-rington v. Harkins, 1 Rob. 591, it was determined, that if pleas be tendered by the defendant and rejected by the court, and he takes no exception to the rejection of them, he shall be presumed in the appellate court to have acquiesced.
      See the principal case cited in Williams v. Knights, 7 W. Va. 338.
      See foot-note to Johnson v. Jennings, 10 Gratt. 1; Fitzhugh v. Fitzhugh, 11 Gratt. 301, and Dickilison v. Dickinson, 25 Gratt. 321. See generally, mono-graphic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   CABELL, P.,

delivered the opinion of the Court.

The judgment, of which the appellees sought to have execution, by their scire facias in the Court below, was for S74 dollars 92 cents damages, with legal interest thereon, from the 7th of December 1838, till paid, and 9 dollars 69 cents costs. To this scire facias, the appellant pleaded nul tiel record, and payment; on which the appel-lees joined issue. The appellant also tendered several special pleas, which, being objected to by the appellees, were rejected by the Court; to which rejection, however, no exception was taken by the appellant. These special pleas, and the defences which they sought to set up, cannot, therefore, under the decision in White v. *Toncray, 9 Leigh 347, now be considered by this Court. The issue on the plea of nul tiel record having been determined by the Court in favour of the appellees, the only subject left for enquiry, is, as to the correctness of the judgment of the Court below, on the verdict of the jury, upon the issue joined by the parties on the plea of payment. On that issue, the jury “found for the plaintiff, 647 dollars 85 cents, the debt in the scire facias mentioned, with legal interest thereon, from the 7th day of October 1840, until paid;” and the Court entered up judgment accordingly.

It will thus be seen that the verdict departs from the scire facias, by finding for the plaintiff the consolidated amount of principal, interest and costs, with continuing interest upon that consolidated amount until paid. This was clearly illegal, in giving interest on interest and costs. But it was also supererogatory in the jury, to find any particular sum for the plaintiffs. The jury were sworn to try the issue on the plea of payment; and having found that issue in favour of the plaintiffs, and thereby negatived the defence set up by the defendant, their functions, regularly, ceased there; and it then became the province of the Court to enter up judgment according to the scire facias. But the jury by transcending the bounds of their rights and duty, by illegally finding' for the plaintiffs a larger debt than that stated in the scire facias, did not give to the Court the right, nor impose on it the duty, to enter up a judgment according to the. verdict. The Court ought to have regarded that','part of the verdict as merely supererogatory, and ought to have rendered a judgment according to the scire facias. The judgment is therefore reversed with costs, and this Court proceeding to give such , judgment as the Court below ought to have rendered, it is adjudged and ordered, that the ap-pellees recover against the appellant, the sum of 574 dollars 92 cents damages, with interest thereon from the 7th daj of December 1838, till paid, and 9 dollars 69 cents, the costs of the first judgment.  