March, 1836. personal notice, the reason of the law of 1779 failed, and of NASHVILLE, consequence the law did not operate. 4. The act of 1779 was passed to secure the attendance of Jurors on the courts, it was not so much a personal privilege for the juror, as a means of facilitating the business, of courts. Hence, when process was served on the body of the juror, the service was declared void, and the juror had a right to be discharged from arrest, by motion to the court of which he was a juror. No such motion was made to the court, but the defendant appeared before the magistrate, and there attempted to claim his privilege. He should have moved the court to discharge him. TURLEY, J. delivered the opinion of the court. This suit was commenced before a justice of the peace, and taken by appeal to the circuit court. On the trial, the defendant offered to prove that at the time the summons from the justice was executed on him, he was attending court as juror; this testimony the court refused to hear. Is there error in this determination? We think not, for two reasons. The act of 1799, c. 6, § 11, under which this testimony was offered, says, "no sheriff or other officer shall serve or execute any writ or other process on the body of any juror, during his attendance on, going to, or returning from any county or circuit court, and any such service shall be void, and the defendant may, on motion, be discharged." The object of this statute, from beginning to end, is to make provision for furnishing jurors to the courts, who shall be constant and punctual in their attendance. The eleventh section was to prevent a delay of the business, by an exemption of the jurors, from process against their bodies, not to grant a privilege from arrest for the benefit of the juror. A summons is not a process or writ against the body, it is only a notice, and therefore not within the words of the statute: but it is said it is within the spirit. We think not. All the act does, is to free the juror from bodily arrest, in order that he may be able to attend court; for us to go further, and say that it was intended for the personal benefit of the juror, and that he should Grove V Campbell March, 1836. Grove V Campbell. NASHVILLE, not be summoned to a trial before a justice or a court, would be to make the law, not to expound it. 2nd. The court did right not to hear the testimony, because it was matter not in defence, but in abatement of the action. Pleas in abatement are allowed, stricti juris, and no latitude in practice is extended to them; they must always be filed in a right time, in right form, and properly verified, before the court will entertain them; this was not done in this case. But it is argued, that all pleadings are by parol before a justice of the peace, and, therefore, matters in abatement may be taken advantage of, without plea before them. Let it be granted, that the situation of the country makes this necessary, yet the necessity ceases to exist when the case is carried by appeal to the circuit court, and the act of 1794, c. 1, expressly provides, that no plea in abatement shall be received in said courts unless the same be verified by affidavit or otherwise, that is by affidavit, when the matter is in pais, and by record, when it is matter of record. The word affidavit, ex vi termini, means an oath reduced to writing. It is important that this practice should not be violated; matter in abatement is not favored, because it does not go to the merits of the case, but defeats the action, and not the cause of it. If upon a trial by a jury sworn to try the merits of the case, the defendant could be permitted to prove matter in abatement, without previous notice, surprise in many instances would be the consequence, and in many cases perjury, as the plaintiff would not be supposed to be prepared with rebutting proof. We, therefore, think that in all cases brought by appeal from a justice to a court of record, matter in abatement shall not be taken advantage of, unless it be set forth in writing, and verified by oath, or otherwise, at the first term of the court to which the appeal is taken; and that matter in abatement and matter in law shall not be used at the same time, this is in analogy to the practice, which prohibits the filing pleas in abatement and pleas in bar at the same time to the same suit. Let the judgment of the circuit court be KINCANNON US. CARROLL, Gov. &c. The condition of a bond was, "that the sheriff and collector should well and faithfully pay the taxes, &c. on or before the 1st of January, 1833." By law, the condition ought to have been to pay the taxes on or before the 1st of the preceding December: Held, that the condition of the bond was valid, and authorized a judgment on motion against the sheriff and his sureties. Although the condition of a bond may not be so extensive as the act of assembly authorizes, it is nevertheless good as far as an obligation is created, and to that extent a. judgment may be rendered. Where a word" is emitted in the condition of a bond, without which, the condition is insensible, if it appear from other parts of the bond, what the meaning of the parties was, the court will supply or add the word to the condition. The law required the condition of a sheriff's bond for the payment of the taxes, to be made payable to the treasurer of the district wherein the sheriff resided. The bond in this case, recited that A, the party bound was elected sheriff and collector of Lincoln county; the condition of the bond was, "that the taxes should be paid to the treasurer of the district of Tennessee." Lincoln county is in the district of West Tennessee: Held, that the court could supply the word "West," so as to make the condition read payable to the treasurer of the district of West Tennessee, This writ of error is prosecuted from a judgment rendered on motion, in Davidson circuit court, against A. A. Kincannon, as sheriff and collector for Lincoln county, and the other plaintiffs in error, as his securities. The bond recited, that Kincannon was elected sheriff and collector of Lincoln county. The condition of the bond, as recited in the judgment is, that "the above bound A. A. Kincannon shall well and truly and faithfully pay to the treasurer of the district of Tennessee, all taxes by him collected, or which ought to be collected on or before the 1st of January, 1833, and the 1st of January, 1834, then the obligation to be void, else to remain in full force and effect." T. Washington, for plaintiff in error. 1st. The bond given in this case was not such as is directed by statute. The act of 1801, c. 12, § 1, requires, that the bond to be given shall be "conditioned for the payment of all public and county taxes that may become due during the time such person shall be appointed." The condition of the bond in this case is, "that he shall well, and truly and faithfully pay over to the treasurer, for the district of Tennessee, NASHVILLE, Kincannon Carroll. March, 1836. NASHVILLE, all taxes by him collected, or which ought to be collected, on or before the 1st of January, 1833, and on the 1st of January, 1834.” Kincannon V Carroll. The condition of this bond, and that required by statute, is wholly different; and not being taken conformably to the statute, no motion will be upon it, as has often been determined by this court. Vide 4 Yerger's Rep., Sumner vs. Henry, 163. 2nd. The condition of the bond is, that payment of the taxes collected shall be made to the "treasurer of the district of Tennessee." There is no such officer known to the law, nor any such person in rerum natura; the bond is therefore wholly void. Vide acts of 1796, c. 6, § 1; 1813, c. 26, § 1; 1827, c. 12, § 1 and 2. 3rd. It does not appear that the county court of Lincoln ever directed in what penalty the said bond should be executed, (See act of 1801, c. 12, § 1.) It does not appear that said bond was ever acknowledged before, or accepted by the court, and for aught that appears to the contrary, it may have been executed in a penalty, less than the court would have been satisfied with, and may have gotten into the files very irregularly, in order to prevent the court from passing formally upon it. 4th. It does not appear that A. A. Kincannon had ever been commissioned by the governor. See Constitution of Tennessee, art. 6, § 1: act of 1779, c. 5, § 1. George S. Yerger, (Atto. Gen.) for defendant în error. The condition of this bond requires the sheriff to pay the taxes to the "treasurer of the district of Tennessee," and it is urged, that as there is no such officer known to the law, the bond, being a statutable bond, is void, and no recovery can be had on it by motion or otherwise. The act of 1803 repeals the act of 1801, and required the bond to be made payable to the treasurer of the district in which the sheriff resides. The intention of the parties was to make it payable to the treasurer of the district of West Tennessee, that being the district in which the plaintiff in error resided, and this intention is manifest from the bond itself. It recites March, 1836. V Carroll. that he was elected sheriff of Lincoln county, and the court NASHVILLE, is bound to notice, that Lincoln county is in the district of Kincannon West Tennessee. It is evident, therefore, that in drawing the condition, the word "West" was omitted by mistake; add this word and the condition is sensible-it will then make the taxes payable to the "treasurer of the district of West Tennessee." In construing the condition of a bond, if a word is left out, without which the condition would be insensible or repugnant, the court may supply the word, if the recitals, or any other part of the instrument shows what the parties intended. 4 Hay. Rep. 258-9: 15 En. Com. Law Rep. 300. In the latter case, the word "pounds" was omitted, but the court supplied it, in order to give the instrument a sensible meaning, such being the meaning of the parties, as evidenced by other parts of the instrument. Again, if the bond were merely conditioned, "that he should pay the taxes," it would be good, because the law points out the person to whom they are to be paid, therefore, the words, "to the treasurer of the district of Tennessee" may be stricken out, or rejected, as surplusage, and still the bond be good. 7 Bingh. Rep. 423. It is objected, that this judgment does not recite or show that Kincannon was sheriff, or that the bond was acknowledged or recorded, and that the court had no proof of its execution, or that he was commissioned as sheriff. The judgment must only state such facts as show the court has jurisdiction. M Carrol vs. Weeks, 2 Tenn. Rep. 215: Hamilton vs. Burem, 3 Yerg. Rep. 355. The law does not require that the facts or evidence, upon which the court acted, should be recited in the judgment. Hamilton vs. Burem, 3 Yerg. Rep. 355: Finch vs. Ferrell, 8 Yerg. Rep. 432. GREEN, J. delivered the opinion of the court. Two questions are raised upon this condition. 1. It is insisted that as the act 1803, c. 3, § 14, prescribes, that the bond shall be conditioned to pay the taxes to the trea |