Opinion
(December Term, 1846.)
1. Where, in an action against the sheriff and his sureties for failing to collect the county taxes, it appeared from the record that "twenty-two justices" were on the bench when the taxes were assessed: Held, that the court must intend that these were a majority or the whole of the justices of the county, and, therefore, the taxes were properly imposed.
2. This is different from the cases in which the law requires a certain number of justices to be present when a tax is imposed, and the record does not show that the requisite number was present.
APPEAL from MOORE Fall Term, 1846; Settle, J.
Debt, brought upon a bond, purporting to be the official bond of the defendant, E. McIntosh, as sheriff of the county of Moore. The other defendants are sureties. The bond is in the from usual in such instruments and contains the usual conditions. The breach assigned was for failing to collect the county taxes. In order to show that the taxes were duly imposed, the plaintiff produced the records of the county court of Moore, from which it appeared that at the time of their assessment twenty-two magistrates were on the bench. On the part of the defendants it was objected that to enable the court to assess the county taxes it was necessary that a majority of the acting justices should be present on the bench, and that such must appear to be the fact from the record itself, "in so many words"; that the record here produced does not show that the twenty-two magistrates, who are named did constitute such majority. To remove the objection, the plaintiff offered to prove that the twenty-two magistrates whose names appear on the record as being present at the assessment of the taxes did constitute a majority of the acting justices of the county. This evidence was rejected by the court.
His Honor being of opinion with the defendants, the plaintiff, in submission to it, suffered a nonsuit and appealed. (69)
Strange for plaintiff.
D. Reid and A. K. Kelly for defendants.
The objection of the defendants was that the record did not aver in haec verba that a majority of the acting justices were present making the assessment, but it nowhere appears in the record that there were any more justices in the county. For aught that appeared, those twenty-two who were present did constitute a majority of the whole body of the magistracy of the county. Every case which has been before this Court on the delivery of the official bonds of sheriffs and constables, and when it has been held there was no delivery for the want of a court properly constituted to receive it, has been a case in which the Legislature has itself designated the precise number of magistrates which shall constitute a court for that purpose, and the records have shown that there were not that number. Thus in the several cases of S. v. Wall, 24 N.C. 273, the records show that a less number of magistrates were on the bench where the action of the court complained of took place than was by law required. In Dudley v. Oliver, 27 N.C. 227, the requisite number of justices was not named as being present, and at the same time it appeared that there were others. In the case now before us the law does not point out the precise number of magistrates necessary to be on the bench when the taxes are laid, but leaves that to be ascertained by the number of acting justices in the county. There is nothing in the record, as it appears before us, to show that there were any other magistrates in the county of Moore than those enumerated, and, of course, there was a majority present.
There were several other points taken by the defendants, on which the opinion of the Court was in favor of the plaintiff, and therefore we can take no notice of them.
We are of opinion there was error in the judgment below, and (70) it must be.
PER CURIAM. Reversed.
Cited: Clifton v. Wynne, 80 N.C. 148.