
    Brown, Gov. vs. Elms, and others.
    Elms gave bond as Sheriff of Pütnam county, and as such collected State Taxes. A motion was made against him in White county. The judgment recites that defendant resides in that part of Putnam county which was, and is, pai-t of White county. The court say they will judicially know from the records of the chancery court that there never was, legally and constitutionally, such a county as Putnam; and, therefore, the remedy by motion, was not authorized.
    A judgment was rendered in the circuit court of White county, by Campbell, Judge, against Elms and securities on a bond executed by them. Elms and securities procured a transcript of the record to be filed, and prayed a writ of Error. The transcript contains no bill of exceptions.
    The judgment is in the following words: — This day came the Attorney General for the fourth circuit and moved the court for judgment against the said Thomas S. Elms, sheriff and collector of the public revenue for the county of Putnam, in the year 1843, and Edmond Stamps, Edward Elms, George McCormick, David Apple and George Apple, his securities, for the sum of two hundred and thirty-six dollars twenty-seven cents, as state tax, by him collected, and which he has failed to pay over as the law requires, for the year 1843: — and it appearing to the satisfaction of the court, that the said Thomas S. Elms was the sheriff and collector of the public taxes for the county of Putnam, in the year 1843, and that the said Edmond Stamps, Edward Elms, George McCormick, David Apple and George Apple were his securities as such sheriff and collector of the public taxes, and that the said Thomas S. Elms, as such sheriff and collector of the public taxes, has collected upon the Tax lists duly made out by the clerks of the county courts of said county of Putnam, and placed in his hands as such sheriff and collector for the year 1843, the sum of two hundred and thirty-six dollars and twenty-seven cents, as a state tax for the use and benefit of the State of Tennessee. Which said sum of two hundred and thirty-six dollars and twenty-seven cents of state tax, the said Thomas S. Elms, as such sheriff and collector, has wholly failed to pay over as the law directs. And it also further appears to the court, that the said Thomas S. Elms, sheriff and collector as aforesaid, in the year 1843, and while he was acting as such sheriff and collector, resided in that portion of Putnam county that was taken from White county, to form a part of said county of Putnam, and that he now resides in that same portion of White county. It is therefore considered by the court, that Neill S. Brown, Governor in and over the State of Tennessee, and for the use of the State of Tennessee, recover against the said Thomas S. Elms, former sheriff and collector as aforesaid, and Edmond Stamps, Edward Elms, Geo. McCarmick, David Apple and George Apple, his securities, the said sum of two hundred and thirty-six dollars and twenty-seven cents, the amount of the state tax by him collected in the county of Putnam, in the year 1843, as aforesaid; together with the further sum of seventy-seven dollars .and thirty-six three-fourth cents, interest thereon, at the rate of six per cent, per annum, from the last day of December, 1843, up to this day; together with the further sum of thirty-nine dollars and twenty and one-fourth cents, damages upon the whole amount, at the rate of twelve and one-half per centum; amounting in the whole to three hundred and fifty two dollars and eighty-four cents, together with all costs in this behalf, about this motion expended, and that execution issue for the collection of the same.”
   Green, J.

delivered the opinion of the court.

This is a motion against the defendant for revenue collected in 1843, as sheriff of Putnam county. The motion is made in White county circuit court, and the judgment recites that the defendant resides in that part of the late county of Putnam, which was and is part of White county.

The motion is without notice. We do not think a motion will lie in this case. There never was legally and constitutionally such a county as Putnam. This we judicially know from the records of the chancery court. As the attempted organization of Putnam county was unconstitutional, and has been so declared, of course the elections vested no official character in the persons chosen: and therefore the bond executed by the defendant, under the supposition that he was sheriff, is a mere voluntary bond, upon which he may be sued at common law: but upon which no remedy by motion, as in the case of official bonds, exists.

Reverse the judgment.  