
    Barry vs. Patterson.
    In summary proceeding's every fact necessary to give jurisdiction must be set out in the judgment; and, therefore, where a judgment was rendered against Warner, as constable, for failure to pay over money by him collected; and also against Barry, without stating that Barry was the security of the constable: It was held, that the jurisdiction did not appear as to Barry.
    This case was brought up, from the circuit court of Sumner county, by writ of error.
    
      J. C. Guild, for the plaintiff in error.
    See McCarroll vs Weeks, 2 Ten. Rep. 215, Hamilton vs. Burum, 3 Yerg. 335,. Porter vs. Webb Co. 4 Yerg. 161.
    
      J. J. White, for the defendant in error.
    I admit it is a rule, that the record must recite all the material facts necessary to give the court jurisdiction. Is not that done here? The judgment recites, that it. is “the amount collected for plaintiff below by Reuben T. Warner, a constable, on certain notes, (specifying them,) and which he had failed to pay over.”
    This motion is made under the act of 1817, ch. 54, sec. 2, (N. & C. 182:) all that this section renders it necessary to show, is that he is a constable; that the debts are within the jurisdiction of a justice of the peace, and that the constable received the money, which he failed to pay over, and that he had notice of the motion; all which appears here.
    The decision in 4th Yerg. 161, 8th ibid, 101, 9th ibid, 92, and other decisions in regard to executions in the hands of a sheriff) issuing from courts of record, and founded upon other statutes, have nothing to do with this question. ^To apply such a rule to the little debts in the hands of constables, scattered all over the country, would be wholly impracticable. Besides it will be seen from looking at this statute of 1817, that nothing of this land is contemplated or required by the law.
    It is said the record ought to show that the delinquency happened while the plaintiff in error was security; the answer is, it is only necessary to show the delinquency happened while Warner was constable. 7thYerg.365. The presumption would be that he was security; and this objection comes too late here when it appears he defended himself by counsel in the court below, and no such defence was made there. Besides, if he was not in point of fact the security at the time, and had no opportunity of defence, the remedy would' be not by writ of error to this court, but a supersedeas in the court below and a writ of error coram nobis, and. that error of fact assigned and investigated in the court below. See 9th Yerg. 91.
   GREEN, J.

delivered the opinion of the court.

In this casé judgment was rendered in the court below, on motion, against Reuben T. Warner, a constable, for $214 22, collected by him as constable, and also against Thomas Barry and Jacob L. Warner, for the same amount; but why it was rendered against the two latter persons, the record no where indicates. It is no where in the record of the judgment said that they were securities of the constable, a fact which must be stated to have appeared to the court, in order to render them liable as such. The court could have no jurisdiction over them unless that fact existed, and it is a rule, in these summary proceedings, that every fact, necessary to give jurisdiction, must be set out in the judgment, as existing.

The judgment must be reversed, and the plaintiff in error, Barry, (who alone has prosecuted this writ of error,) may go hence.

Note. — See Jones vs. Read, 1 Hum. 335.  