
    Miller and Foster vs. White.
    The bail bond forms a part of the record of the canse, and where an appeal is taken to the circuit court, the bail bond is carried with the cause, and becomes a record, after the appeal in the latter court.
    Where a bail bond recites that the obligee is sheriff, &c., an assignment by the obligee, without naming himself sheriff in the assignment, is sufficient.
    The defendant in error brought an action of covenant against Stephen Gr. Eubanks, in the county court of Williamson. When the writ was executed, the plaintiffs in error become appearance bail for Eubanks The county court Save judgment in favor of Eubanks, that he go hence without day, &c., and recover his costs, &c.; from which judgment White appealed to the circuit court, where judgment was given against Eubanks; upon this judgment a ca. sa. issued from the circuit court, upon which there was a return of “Not found.” This scire facias then issued from the circuit court against the plaintiffs, as bail of Eubanks, which was made known. The plaintiffs in error appeared and pleaded to the scire facias. The circuit court gave judgment for the defendant in error, that he recover of the defendants below the damages, &c.; from which judgment the plaintiffs in error appealed in the nature of a writ of error to this court.
    The bail bond was taken payable to W. G. Childress, sheriff of Williamson county. The assignment of the bond was, I, W. G. Childress, assign, &c.
    
      J. Marshall, for the plaintiffs in error.
    The plaintiffs insist, 1st. That the circuit court had no jurisdiction of the cause between the defendants and plaintiff. The appeal did not carry up the bail bond; it is only a record of the county court and the scire facias ought to have issued from that court. Haywood and Cobbs, 19, 213: Tidd’s Pr. 248, 336: 8 Term Rep. 152: 2 William Blackstone’s Rep. 838. There is no record in the circuit court upon which to issue the scire facias. See Haywood and Cobbs, 5.
    2d. The bail were discharged by the recovery in the county court. 1 Yerger, 82, 146, 448, 397-8.
    Sd. The circuit court erred in giving judgment that the defendant recover, &c. instead of, that he have his execution. See Peck’s Rep. 158.
    4th. There is no legal assignment of the bail bond by the sheriff, to the defendant. See Haywood and Cobbs, 18, 19.
    
      
      H. Marshall and Alexander, for the defendant.
    1st. m. . ... 1 be assignment in this case is unobjectionable, because in the body of the bail bond, William G. Childress is admitted to be sheriff of Williamson county, and because, the act of 1794, ch. 1, sec. 12, is directory and not imperative. 2 Tenn. Rep. 178. If the statute be substantially pursued it is sufficient. 1 Tidd’s Prac. 198-9: 2 Hawk’s Rep. 161-7.
    2d. The rendition of the judgment in favor of Eu-banks did not discharge his bail, because that judgment was appealed from. Our act of 1794, eh. 1, sec. 14, gives to a bail bond the same effect as that of the recognizance by which special bail are bound in England. See 3 Blackstone’s Comm. 291. 1 Tidd, 211, 238-9: 2 Saunders, 71, note 2, 72, a: 2 Hawk’s Rep. 171.
    By the English law, if judgment be for the defendant, and be reversed for error, the bail to the original action is liable. 5 Dane, 281, sec. 23: 1 Bacon’s Abr. 212: 1 Com. Digest, 691. All bail by our law is special bail. 3. When the appeal was granted and the cause removed to the circuit court, the bail bond, forming a part of the same record, was removed with it: it became, and was after the appeal, a record of the circuit court, and the scire facias was properly issued from the latter court.
   Catron, Ch. J.

delivered the opinion of the court.

The bail bond and assignment on it were a record of the county court, on which a sci. fa. would lie. When the cause was carried up by appeal to the circuit court by either party, this part of the record was carried up with it, and stood in the court above in the same condition as in the inferior court. Such has been the uniform construction of our laws on the subject of bail. The securities had the power to surrender the defendant, Eubanks, at any time pending the suit, and to the court where the cause was at such time pending.

2d. It is objected the endorsement on the bail bond js insufficient. It is in the form the statute prescribes, except that “I. A. B. sheriff,” is the 'form observed; whereas, the form in the statute is, £‘I, A. B., sheriff of county.” But here the county of the sheriff and defendant appears on the face of the bond, and the endorsement taken in connexion with it, is just as certain as if the county of which the assignor was sheriff did appear in the endorsement.

Judgment affirmed.  