
    McBee vs. The State.
    PRACTICE* Process — return of sheriff". No averment can be allowed against a sheriff’s return. If untrue, the remedy is by action on the case for a false return.
    Pleading. Demurrer to plea in abatement — judgment. The judgment on demurrer to a plea in abatement is respondeas ouster. It is error to render judgment final. Eichorn vs. he Maitrc, 2 Wilson, 367.
    The plaintiff in error, Samuel McBee, entered into a recognizance before a justice of Claiborne, on the 26th of July, 1S3G, (or the appearance of one Pleasant McBee, in the circuit court of that county, on Tuesday after the fourth Monday of August thereafter, to answer a charge of forgery. This recognizance was forfeited, and to a sci. fa. issued thereon, the sheriff returned — “Executed on Samuel McBee on the 9th of September, 1836, — Pleasant McBee not found in my county, this 6th day of September, 1836.” To an alias sci. fa. he made the same return, April 10, 1837.
    The plaintiff in error craved oyer of these returns, and pleaded that the sheriff had not made said writs of sci. fa. known to him, &c., and prayed that they be quashed, &c. Two terms after the filing of the plea, the attorney general moved and obtained leave for the sheriff to amend the returns by striking out the words — “executed on,” and inserting instead' —“made known to,” and demurred to the plea.
    At May term, 1838, Anderson, Judge of the 12th circuit, sustained the demurrer, and proceeded to render judgment — “That the State of Tennessee recover against the •said Pleasant McBée and Samuel McBee the sum of two thousand dollars, the amount of the recognizance in the sci. fa. mentioned, together with the Costs,” &c.
    The-plaintiff in error having excepted- to the amendment allowed by the court, appealed in error from the judgment pronounced on the demurrer.
    June 15.
    Peck, for the plaintiff in error.
    Geo. S. Yerger, Attorney General, for the State.
   Turley, J.

delivered the -opinion of =fhe court.

This is an action on behalf of the state to recover the amount of a forfeited recognizance, to which defendant pleads in abatement, that the scire facias was not made known to him either by being read or a copy delivered to him. T.o this plea there is a demurrer, which was sustained by the court and judgment final given thereon against the defendant, to re» cover which this writ of error is'prosecuted.

There are several questions made, which we deem it unnecessary to nctice, as they are most clearly against the defendant. But the question most relied on is as to the correctness of the opinion of the court in sustaining the demurrer and the judgment final rendered thereon.

The demurrer was properly sustained. No averment can be allowed against the return of the sheriff, — if his return be false the defendant’s remedy is by an action on the case for a false return.

But it is said that the judgment of the court upon sustaining the demurrer ought not to have been final, but that (he defendant answer over. This proposition is unquestionably true, in the case of Eichorn vs. Le Maitre, 2 Wilson’s Rep. 367, the court of C. B. says, that “if issue be joined upon a plea in abatement, and the verdict be against the defendant, the judgment ought to be final, because every man must be presumed to know whether his plea be true or false; but upon a demurrer to a plea in abatement there shall be a respondías ouster, because every man shall not be presumed to know the matter of law which he leaves to the judgment of the court.” This is the leading case upon this subject, and having never been questioned since its determination,. it. is conclusive upon the question under consideration.

But it is said by the attorney general, that the. judgment of the Gourt is a judgment by default for want of a plea, to the merits which defendant neglected to, file, when • he might •well have done so. This answer to the objection cannot avail. The judgment of the court is in these words; “It is considered by the court that the said demurrer to said plea be sustained; and said seine facias, as against said defendant being ¡undefended further, upon motion of the state by the attorney .general, it is considered by the court that the State of Tennessee recover,” &c. This is a final judgment upon the demurrer, and not a judgment by default; and moreover, no judgment by default could have been regularly taken until the defendant ¡had neglected to plead to the merits upon a judgment of respondeas ouster.

The judgment of the court below will therefore be reversed .and the case remanded for further proceedings.  