Judge Roane
pronounced the court’s opinion, “ that, the sheriff in this case not having returned that the plaintiff was bail for the appearance of the said James Ryburn, the judgment of the County Court is erroneous as to the plaintiff in error.”
Both judgments reversed, and judgment entered that the
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defendant in error recover against the said James Ryburn(1) one hundred and thirty pounds, the damages by the jury in their verdict assessed, and his costs by him about his suit in the said County Court expended; and further that the plaintiff in error recover against the defendant his costs by him expended in the prosecution of his writ of supersedeas in the said superior court of law, as well as his costs in this court.,
(1).
Munford suggested to the court the propriety of entering the judgment against the defendant and the sheriff; that officer having made himself liable by failing to make a proper return of the writ. But the court said that this could not be done, without giving the sheriff an opportunity of defence; and that, if the return was incor rect, the proper remedy of the plaintiff was by action against the sheriff