Lenox against Pike.

recover of the defendant, the amount of damages as found by the jury, and that sum is set forth in the judgment for the detention and hire of the slaves while they were in the possession of the defendant, together with the costs of suit. The judgment in every particular follows the verdict, and corresponds with it. The writ of error sued out, denies the validity of this judgment. It is certainly valid and regular on its face. In what then does its illegality consist? It is pronounced upon a valid and regular verdict, presumed to be given on full and competent proof, and every way satisfactory to the minds of the jury who rendered it.

This is an action of detinue, where the plaintiffs sue for the recovery of the particular thing demanded, and the judgment in such form of actions must be in the alternative, and is given for the recovery of each particular item of property mentioned in the declaration, if to be had, or if not to be had, then it is rendered for the respective value of each article separately. It is usual for the jury to give damages for the detention of the property, and in such a case the judgment should pursue the finding, and award the damages assessed by the jury, with the costs of this. In the present instance, the judgment is in strict conformity with the rules just stated, and that being the case, it is fully sustained by all the authorities. Higginbotham vs. Rucker, 2 Call 313.

As it has been already shown that the legal presumptions are all in favor of the verdict and judgment of the court below; and as these presumptions stand unopposed and uncontradicted by any part of the record, it necessarily follows that there is no error in the opinions and judgment of the Circuit Court, now brought up for revision and correction. It may be, and probably is true, that the defendant had a good and lawful defence to the action. But, then, if he had, he has lost the benefit of that right by his own lashes, or that of his counsel. There is but one bill of exceptions taken during the trial, and that wholly fails to spread any part of the testimony on the record. It was unquestionably the duty of the defendant's counsel, in excepting to the opinion of the court in overruling his motion for a new trial, to have incorporated into the record all the testimony given in the cause, so that this court could have seen whether there was error or not in the decision and judgment of the Circuit Court.

Lenox against Pike.

If, in omitting to do this, the defendant's rights have been prejudiced and injured, the fault rests with himself and his counsel, and this court is not authorized, by bare possibility or conjecture, to supply any omission or mistake.

The legal consequence, then, attaches in favor of the verdict and judgment of the court below, and is decisive of the question. This being the case, it necessarily follows that the judgment of the Circuit Court must be affirmed, with costs.

4

ROSE against FORD and others.

APPEAL from Chicot Circuit Court."

A sheriff's return on a writ of summons, in the following words: "Executed the withi by reading, April 8th, 1839," is not sufficient to sustain a judgment by default. The law presumes that every public officer will perform his official duties according to law; and if the facts stated by the sheriff in his return, show a legal service, the truth of the return cannot, as a general rule, be collaterally questioned by the parties to the proceedings.

But where the return, admitting all the facts stated in it to be truo, essentially fails to show a valid legal service, the court can not supply the omission.

After judgment, amendments in the return of service can only be made in matters of form.

The defendant, by appearing generally, waives all exceptions to the writ or return, or at least is precluded thereby from taking any advantage of them.

But he has no legal right to appear to, or defend the action, after judgment rendered against him. He then has no day in court.

Praying an appeal, therefore, is no such appearance as waives any objection to the writ or return.

An appeal may be taken by the defendant, under our statute, after a judgment by default, without first applying to the court to set aside the judgment.

Where a writ issued under the Territorial statute, but the revised statutes went into force before it was served, the sheriff was to be governed by the latter, as to the service and return.

Where the writ and declaration went out together, it was necessary to be shown in the return that the writ was read to the defendant, and that it was read to him in the proper county.

The rule in Gilbreath v. Kuykendall renewed.

This was an action of debt, commenced by Ford & Co. against Rose. The return on the original writ was in the following words: "Executed the within by reading, April 8th, 1839. W. G., Sheriff, by T. H. R., Deputy." The defendant did not appear, and judgment was rendered by default, on the 21st of May, 1839. On the 22d, the defendant filed his affidavit and prayer for an appeal. On the motion book, immediately after the motion of the prayer of appeal, entered the same day, was a motion to amend the sheriff's return in the case. On the 24th the court revoked the leave to amend the return, and granted the appeal.

CUMMINS & PIKE, for the appellant:

The service of the writ was not sufficient to authorize a judgment by default. See Gilbreath v. Kuykendall, ante 50.

p.

After an appeal was prayed, the sheriff's return could not be amend

Rose against Ford and others.

ed in matter of substance.

The statute only authorizes amendments

of returns in matter of form, after judgment rendered. Rev. St. p. 635, sec. 116. Here the motion was general, to amend except in the return day. The motion therefore was properly refused.

The bill of exceptions was filed after appeal was granted, and according to the rule established in Lyon v. Evans et al., 1 Ark. 349, and Gray et al. v. Nations, ib. 557, will not be noticed.

If it could, still the record states that the prayer of appeal was made before the motion to amend, and the record must prevail. Lyon v. Evans et al., 1 Ark. 349.

SUTTON & FOWLER, contra:

The defendant below did not, upon cause shown, move the court tố set aside the judgment, and permit him to defend, as the court would no doubt have allowed him to do. On the other hand, he prayed an appeal from a judgment regularly rendered for the amount designated in the note. If he had a defence, or if injustice were done him by the judgment, it was in his power to correct it in the court below, simply by showing that he had a defence. This he never attempted to do, therefore complaint comes from him with peculiarly bad grace, and he should not receive the countenance of this court, without showing palpable error in law.

As to the first error assigned, it is respectfully urged that the sheriff's return, as first made, was sufficient upon which to render a judgment. A reading to the defendant is good service. New Code, p. 621, sec. 13. The presumption of law is in favor of the return-certainty to a common intert only being required. And as there was but the one defendant named in the summons, the conclusion forces itself irresistibly upon us, that if "executed" at all, and the sheriff returns that fact in this case, it must have been "ex necessitate rei" executed upon the defendant. Otherwise, it was not executed at all, and this position at once would put in issue the truth of the sheriff's return, which stands always as true, until the contrary is proved. But suppose, for a moment, that the return is defective. Is not our statute of jeofails broad enough to cover far more glaring defects? Sheriff's returns may be amended both before and after judgment. New Code, p. 635, sec.

Rose against Ford and others.

116. See also ib., sec. 114, et seq., for amendments generally. The court below having given appellees leave to amend the return, it must from that moment be considered as amended, and made a full and formal return, and no order rescinding such leave could prejudice rights acquired thereunder by the appellees.

Rose was precluded from an appeal, not having moved as he had a right and was bound to do, to set aside said judgment, &c. His appeal is captious and unnecessary. He could have relieved himself in the court below by motion. Rose coming in during term, cured defects in service, &c.

RINGO, Chief Justice, delivered the opinion of the Court:

The only question presented by the record and assignment, which it becomes our duty to consider, is this: Is the service of the process on Rose, as set forth in the return thereof by the sheriff, endorsed on the writ, sufficient in law to authorize and uphold the judgment by default given against him by the Circuit Court?

The solution of this question depends upon the construction to be given to the thirteenth, fourteenth, and fifteeenth sections, of the CXVI. Chap. of the Revised Statutes of Arkansas, 'pages 621, 622, which provide "that a summons may be executed either by reading the writ to the defendant, or by delivering him a copy thereof, or by leaving a copy thereof at his usual place of abode, with some white person of the family over 15 years of age.

"And in all such cases where the defendant shall refuse to hear such writ read, or to receive a copy thereof, the offer of the officer to read the same, or to deliver a copy thereof, shall be a sufficient service of the writ; and every officer to whom any writ shall be delivered to be executed, shall endorse thereon the time when such writ came to his hands, and shall make return thereof, in writing, and shall sign his name to such return, and set out how or in what manner he executed the same."

The appellees insist that the presumption of law is in favor of the return. That certainty to a common intent only is regarded, and there being but one defendant named in the writ, the conclusion is irresistible, that it was "executed," and the sheriff states that fact in