Dudley's Ex'rs ex rel. Wardens v. Oliver

Daniel, J.

This was an action of debt on the sheriff’s bond, mentioned in the case, given at May sessions, 1828, of Onslow County Court, by Brice Fonvjlle, sheriff, and the defendants as his sureties on the same. The breach assigned was that Fonville failed to account for the taxes intended to support the poor of said county, laid on the list of property for the year 1828. The defendants pleaded “ conditions performed”

and “conditions not broken.” The plaintiff, to shew that the tax for the poor of the county, on the list of property for the year 1828, had been laid by the court at May sessions, 1829, produced a copy of the record of the said court of May sessions, 1829 ■, and the said record showed that the said court was composed of James Thompson, William Jones, William Mitchell, Luke Huggins and others, esqrs,; without stating that they composed a majority of the justices of the county. The act of assembly (Rev. St. ch. 89, sec. 9) declares that the County Court must be composed of a majority of the justices *228 oí the county, when a tax for the poor is laid. The Judge instructed the jury, that the plaintiff was entitled to recover. We are of a different opinion. The defendants are sureties; they are not liable for the failure of the sheriff to collect and pay over any tax, not laid by a court having a majority of the justices on the bench, as no other court had authority to lay a lawful tax. The defendants were only bound, that Fonville should collect and pay over all lawful taxes. There must be a new trial.

Pee CuRiam, Judgment reversed, and a venire de novo awarded.