Foster, &c. vs. Wade. no such application on the day mentioned. And by the bill of exceptions it is shown that the motion was never at any time entered on the motion docket. Inasmuch, then, as neither of the alternative requirements of the law was complied with-as the motion was not made in court, nor entered on the motion docket on the day specified, the inevitable consequence declared by the statute is that the motion should have been considered as abandoned. The entry already noticed as having been made on the third day of the term imparted no validity to the subsequent proceedings. Το say that such an entry of record was equivalent to a motion made on a succeeding day, or to an entry on the motion docket on that day, would be a gross and palpable disregard of a plain statute. Whether the entry of the motion and notice on the record on the day specified would not have been in effect a compliance with the statute, is a point not before us, and therefore not decided. As the judgment was a nullity for the reason that there was no case pending in court at the time it was rendered the court below erred in overruling the application subsequently made. by the appellants, to set aside the judgmeut. Wherefore said judgment and the order last mentioned are reversed, and the cause remanded for further proceedings in conformity with this opinion. Cobb vs. Stewart, &c. CASE 13-PETITION ORDINARY-JUNE 16. Cobb vs. Stewart, &c. APPEAL FROM THE UNION CIRCUIT COURT. 1. Where lands are devised by a testator, and after his death a patent issues to him therefor, the legal title upon the issuing of the patent vests in his heirs, who hold the title thus acquired in trust for the benefit of the devisees under the will. 2. In such case, in a suit by the devi ees to recover the land, the heirs are necessary parties; and the action must be in equity. 3. Where the cause of action, prosecuted by ordinary proceedings, is exclusively of equitable jurisdiction, it is the duty of the plaintiff to amend his pleadings and move the court to transfer the action to the proper docket. (Civil Code, sec. 7.) 4. To avail himself of the error of the circuit cout in overruling his motion to require the plaintiff to verify the petition, by affidavit, the defendant should, at the time, except to the decision of the court. This action was brought by appellees to recover 200 acres of land in possession of the appellant. Judgment having been rendered for the plaintiff the defendant prosecutes this appeal. HARLAN & HARLAN, for appellant, cited 9 Dana, 323; 3 B. Mon., 117; 5 B. Mon., 15-60; 2 J. J. Mar., 408; 4 Dana, 36; 16 B. Mon.. 124-5; 4 Bibb, 330; 7 B. Mon., 81; 1 Ib., 368; 2 Mar., 418; 2 Lill, 362; 4 Dana, 322, 501; 6 B. Mon., 438; 9 Ib., 246; 4 Mon., 51; 2 Stat. Law, 933; 7 Dana, 141-2; M. & B. Dig., 779; Rev. Stat., chap. 46; 4 Bibb, 356; 1 Mar., 200. LINDSEY & HUSTON, for appellees, cited Hardin, 464; Dallam vs. Hanley, 2 Mar., Shields vs. Dodd, 5 Litt.; Gaines vs. Buford, 7 J. J. Mar;1 B. Mon., 368; Clarke & Jones, 16 B. Mon.; Sutton vs. Menson, 6 Ib.; 4 Mon., 517–18; 7 Dana, 140. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: This is an action, by ordinary proceedings, to recover the possession of a tract of land, the legal title to which the appellees, the Stewarts, allege they hold by devise from William Robertson. The will of said Robertson was probated in the county of Augusta, Virginia, in January, 1832; and the land in controversy was granted to him, upon a commissioner's certificate Cobb vs. Stewart, &c. dated in 1798, by patent bearing date the 24th of January, 1857, more than 30 years after his death. By an act of the Legislature it is declared, that when a patent has issued or shall issue, or a deed shall be made, to a person who is dead at the issuing of the patent, or the making of the deed, the heirs of such patentee shall take, hold, and enjoy the title to the estate so patented or conveyed, as if such patent had issued, or deed had been made, to such heirs by name. (2 vol. Rev. Stat., page 1.) Although the appellees, the Stewarts, by the will of William Robertson, were invested with such interest in or title to the lands as he had at his death, still, as he never had the legal title, but, upon the issuing of the patent it vested in his heirs by virtue of the statute, supra; and, as it is not alleged that said Stewarts are the heirs of the patentee, the case, as presented, is not such as the common law judge has jurisdiction of. Under the will of the testator, we are of opinion that his heirs hold the title which they acquired by the patent, in trust for the benefit of his devisees. The heirs, however, were necessary parties. The case, as presented, being one of exclusively equitable jurisdiction, it was the duty of appellees to have amended their pleadings, and moved the court to transfer the action to the proper docket. (Sec. 7, Civil Code.) It may be proper to remark that, in order to avail himself of the error of the court in overruling his motion to require appellees to verify their petition upon oath, appellant should at the time have excepted to the opinion, which was not done. Other errors complained of we do not deem it necessary now to notice, as the pleadings and proof may be materially changed upon a subsequent trial. But, for the reasons herein stated, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Thompson, &c. vs. Healy. CASE 14-MOTION-JUNE 19. Thompson, &c. vs. Healy. APPEAL FROM MARION COUNTY COURT. 1. Notice of a motion against a sheriff and his sureties, for failing to pay a county creditor a claim due him, must-where the claim is ordered to be paid by the court after the county levy for the year has been imposed,-aver that there was in the hands of the sheriff a sufficient sum to pay the claim, after deducting the previously allowed claims. But it is not necessary, when the claim is ordered to be paid at the time the county levy for the year is imposed, to aver that the sheriff had collected a sufficient sum to pay it and all other claims allowed at the same time. 2. The imposition of the county levy, and the delivery to the sheriff of the lists of the persons chargeable there with and of the debtors and creditors of the county, as required by law, render him prima facie liable, on the 1st of October, to those whose claims were ordered to be paid at the time the levy was imposed. 3. On the trial of a motion against the sheriff and his sureties for failing to pay a county creditor a claim due him, the record, containing the list of claims, may be read in evidence, and it may be proved by the clerk that he delivered a copy thereof to the sheriff, without producing the list delivered to him. 4. In such proceeding, the plaintiff must aver in his notice and prove every fact necessary to show that the sheriff is liable. (18 B. Mon., 621; 3 Met., 347.) It must be averred that the clerk had delivered to the sheriff a list of the persons chargeable with the payment of county levy, and the sum to be paid by each, and a list of the sums due, and from whom due, to the county. 5. In such case, also, a demand upon the sheriff is necessary—a demand upon the deputy is not sufficient. But 6. If no demand can be made upon the sheriff, the creditor can recover from his Bureties the debt, without damages, in an ordinary action, upon showing that the sheriff collected or might, with due dilligence, have collected a sufficient sum to pay the county creditors. Argu. BARNETT & NOBLE, for appellants, cited Rev. Stat., chap. 26, secs. 5, 6; 1 Greenleaf's Evidence, chap. 9, secs. 86-7-8; 3 Met.,, 348. ROUNTREE & FOGLE, for appellees, cited Rev. Stat., chap. 26,, art. 2, sec. 6; 18 B. Mon., 621; Civil Code, secs. 15, 16. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: This was a proceeding, by motion, in the Marion county court, against the sheriff and his sureties, for failing to pay certain claims which, it is alleged, had been allowed to Healy. by said court. Thompson, &c. vs. Healy. 1. It is contended that the notice of the motion is defective, because it fails to aver that there was in the hands of the sheriff a sufficient sum to pay Healy, after deducting the previously allowed claims. Such an averment is necessary in a proceeding by a creditor whose "claim is ordered to be paid by the court, after the county levy for the year has been imposed." (Rev. Stat., chap. 26, art. 3, sec. 3; 18 B. Mon., 620) But such an averment is not necessary in a proceeding by a creditor, whose claim is ordered to be paid at the time the county levy for the year is imposed. It is the duty of the court, annually, to impose a sufficient levy to pay all the existing liabilities of the county; (chap. 26, art. 2, sec. 2,) and of the clerk to deliver to the sheriff a list of the persons chargeable with the payment of the levy and of the debtors to the county, and also a list of the creditors of the county; and of the sheriff immediately to proceed to collect the levy and the debts due to the county, and pay the same to the county creditors; (Id., sec. 5.) and "if the sheriff or collector of county levy shall fail to pay or satisfy the county creditors, whose names are furnished him by the clerk, the claims due them respectively on or before the first day of October in each year, if demanded of him, he and his sureties, their heirs, devisees and personal representatives, should be jointly and severally liable to such county creditor for his demand, with ten per centum upon the amount due." (Id. sec. 6.) The notice avers that Healy's claim was ordered to be paid at the time that the levy was imposed. In our opinion, he was not bound to aver that the sheriff had collected a sufficient sum to pay it and all other claims allowed at the same time. The imposition of the levy and the delivery of the lists to the sheriff, as required by the statute, rendered him at least prima facie liable for the demands of the creditors, on the 1st of October. Whether or not he could, in any case, after demand properly made, escape liability, by showing that he had not been able, with due dilligence, to collect a sufficient sum to pay the creditors, need not now be decided. 2. It is contended that there was no legal evidence that the list of the county creditors was delivered to the sheriff by the |