#### STATE TO THE USE OF PETER SUMNEY vs. JOSEPH MAGINESS AND OTHERS.

Where a suit is brought on a constable’s bond and it appears the constable was appointed by the county court, it is incumbent on the plaintiff to shew that the people of the captain’s company had failed to elect' a constable, or that the person so elected had died or failed to qualify and give bond and security, or that there was a tie. The appointment of the court, and of course the bond given, are, under any other circumstances, void.

The case of *The State*vs. *Briggs,*2 Ired. 357, cited and approved.

Appeal from the Superior Court of Law of Rutherford county, at an extra Term in July, 1843, his Honor Judge Dick presiding.

This was an action instituted by the relator against the defendant Magness, as a constable for the year 1838, and the other defendants as the sureties on his bond for that year; and the breach assigned was the failure of the constable to collect a debt placed in his hands for collection. The plaintiff, after proving the constable’s receipt, the solvency of the debtor therein mentioned, and also proving that the bond declared on had been signed and sealed, and delivered by the defendants to the clerk of the court, and that the same was produced from the proper files in the clerk’s office, exhibited the record of the county court at January Term, 1838, in which the following entries appear, as a part of the transactions of Tuesday of that term:

“ Tuesday, January Court, 1838. Seven Justices being present; satisfied of the orderly good conduct of William T. the court ganted him a licence to retail spirituous liquors at his house for one year on his paying fees and tax.

“The court drew and elected the following persons to serve *218as jurors of the original panel of the grand and petit jury at the next Spring Superior Court, to wit, &c.

*“*The court appointed Gabriel Washburn constable for one year ^ oaptain John G. Eskridge’s Company. He gave bond, &c. and he was duly sworn.

“ The court appointed Joseph Magness constable for one year in Captain John Edwards’ Company ; he gave bond to N. C. in $4000 with Samuel Magness, Edward Decius, Benjamin Washburn, James McMahon and Gabriel Washburn for sureties, and he was then duly sworn.”

The court was of opinion, that it did not appear from the record, that seven Justices .were *present when the defendant*Magness was appointed a constable and gave bond; nor did it appear that there was a vacancy in the captain’s company. And in deference to this opinion the plaintiff submitted to a nonsuit.

The court having refused a motion to set aside the non-suit, the plaintiff appealed to the Supreme Court.

*Bynum*for the plaintiff.

Caldwell, for the defendant,

cited the. cases of *Slate v Briggs,*3 Ired. *367. Stale v Waugh, 2*Ired. *267. State*v *Lightfoot, 2*Ired. 306.

Dakíiel, J.

The general power to elect and appoint constables belongs to the inhabitants of each captain’s district, and *not*to the county court. But should any person elected constable by the people die, or from any other cause fail to qualify and give bond and security, or should any of the captains’ companies fail to hold an election, or if there should be a *tie*in the election, *then*it shall be proper for the county court, which shall next happen (seven Justices being present) to supply the vacancy occasioned by such failure. The county court (of seven Justices) has power also to determine in all cases of contested elections of constables. Rev. Stat. ch. 24. In this case it was not declared by the court, nor does it appear in fact, that the people had failed to elect a constable in Captain Edwards’ Company, or that any one of the events *219mentioned in the act of Assembly had occurred, which would give the county court power to fill the vacancy. It was incumbent on the relator to shew that some one of the events mentioned in the statute had occurred, to enable the county court to appoint Magness constable for that district; otherwise the appointment was void, as being an excess of power in the county court. The relator failed in this proof, and the court could not help him by any intendment. Therefore, we think the nonsuit was properly entered. *State v Briggs,*3 Ired. 357.

Per Curiam, Judgment affirmed.