Atkins vs. Murphey, 9 Yer. 264

Green, J, delivered the opinion of the court. The judgment nisi does not sufficiently set forth the facts upon which the court proceeded to render judgment. It has always been holden, that in these

summary proceedings, the facts necessaryto give the court jurisdiction, must be set forth in the judgment. Hamilton’s lessee vs. Burum, 3 Yerger’s Rep. 355: McCarroll vs. Weeks, 2 Ten. Rep.: Porter vs. Webb, 4 Yerg. Rep. 161. In this judgment nisi, it is not shown who were the parties in the writ of capias ad respondendum, and consequently it does not appear that Murphey had any right to make the motion. He alone is entitled to the penalty given by the act of 1777, c. 8, § 7, who is grieved, by the failure of the sheriff to do his duty.

It must therefore appear that the party making the motion was the plaintiff in the writ, for otherwise he could not be the party grieved. It is not shown in the judgment, that the capias ad respon-dendum was returnable to the Perry circuit court, where the motion was made, and as by the act of 1777, c, 8,§ 7, the motion is authorised to be made only in the court to which the process is returnable, the omission, to show to what court it was returnable, is fatal. Let the judgment be reversed. Judgment reversed.