#### STATE *vs.*E. M. McINTOCH & AL.

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 tho Court must intend that these were a majority or the whole of the Justices .of tho Copnty, and therefore tho taxes were properly imposed.

This is different from tho cases, in which the law requires a *certain numjier*of Justices to be present, when a tax is imposed, and the record does nqt shew that the requisite number was present.

The cases of *Stale*v. *Wall,*2 Ired. 273, and *Hadley ¶. Oliver,*5 Ired. 227, Icited and approved.

Appeal from the Superior Court of Moore County, at the Fall Term, 1846, his Honor Judge Settle presiding.

This is an action of 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 form 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 wordsThat the record here produced, does not shew that the twenty-two magistrates, who are named, did constitute such majority. To remove the objection, the plaintiffs offered to prove, that the twenty-two magisr trates, whose names appear on the record, as being pre? sent at the assessment of the taxes, did constitute a majority of the acting J ustices of the county. This eyidence was rejected by the Court.

*69His Honor being of opinion, with the defendants, the plaintiff, in submission to it, suffered a non-suit and appealed.

*Strange,*for the plaintiff.

*D. Reid*and *A. K. Kelly,*for the defendants.

Nash, J.

The objection of the defendants was, that the record did not aver *in hcec vería,*that a majority of the acting Justices were present, making the assessment, but it no where appears in the record that there were any more Justices in the county. For ought that appeared, those twenty-two, who were present, did constitute a majority of the whole body of the magistracy of the county. Every ease, 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 the *State against Wall, 2*Ired. 273, the records shew that a less number of magistrates were pn the bench, where the action of the Court complained .of took place, than was by law required. In *Dudley*v. *Oliver, 5*Ired. 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 shew, 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 favour *70of the plaintiff: and therefore we ean take no notice of them.

We are of opinion there was error in the judgment below, and it must be reversed and a *venire de novo*awarded.

Pee Cukiam. Judgment reversed.