#### THE STATE TO THE USE OF GEORGE W. HARRIS & SON vs. GULIELMUS C. WIGGINS & OTHERS.

Where the only evidence of the appointment of a constable, is that‘-A. B, was appointed constable for the town of Oxford, who, entering into bond #4000, with G. D. &e as securities, was duly qualified.” *Held,*that in the absence of any evidence from the records of the Court, that there was a vacancy, the County Court has no poiter to appoint a constable, and a bond given under such appointment, is void.

The case of the *State v McAlpin,*4 Ired. 140, cited and approved.

Appeal from the Superior Court of Law of Granville County at Spring Term 1844, Ms Honor Judge Dick presiding.

This was an action brought upon a bond, given by the defendant, Wiggins, as a constable for the County of Gran-ville, the other defendants being his sureties in the said bond. The plaintiffs proved the signature and seals of the defendants to the bond in question, and to shew the legal appointment of the defendant, Wiggins, as constable, and the acceptance of his bond, the plaintiff offered in evidence the following extracts from the minutes of the County Court; to *wit) first,*that seven magistrates were -on the bench; *second*ly, that the following order was passed, among many others appointing constables, to wit, “a majority of justices being present, G. C. Wiggins was appointed constable for the town of Oxford, who entered into bond for $4000 with John D. Bullock and Daniel A. Paschall securities, and duly qualified.” The defendant’s counsel then moved that the plaintiff be nonsuited, on the ground that it had not been shewn that G. G. Wiggins had been regularly appointed constable and his bond delivered, and therefore this action could not be supported. The Court directed a nonsuit, and the plaintiff appealed.

*274*E. G. Meade*for the plaintiff.

No counsel in this Court for the defendants.

Nash, J.

This is one among many appointments of constables, and all in the same terms ; and by the record it appears that a majority of the justices were present, making the appointments. There is nothing in this case to distinguish it, in principle, from those already decided by this court on the same subject. The power of the County Court to appoint constables is no,t an original one, but derivative; given them only to be exercised on the occurrence of certain events, specified in the Act of Assembly. Should the people of the County in their respective districts fail *to make an*appointment, or the person by them elected die, either before or after his qualifying, or fail or neglect to give bond and security as required by the law, then and in each of these cases the County Court is to appoint. Rev. Stat, ch. 24, sec. 4, 5. From these sections it clearly appears that the County Court has no power to appoint originally, but only to fill vacancies. In-order, then, to sustain an appointment made by the County Court, it must appear by the record that there was a vacancy to be filled; and unless there is a vaeaney, the Court has no power to act. The case here has not occurred, in which alone, under the statute, they have the legal power to act. The record states the presence of a majority of the magistrates of the County, when the defendant, Wiggins, was appointed a constable for the town of Oxford; but it does not shew any vacancy to be filled, nor does it exhibit any statement, from which the Court can, judicially, infer that such was the fact. We have often had occasion to regret the loose and imperfect manner, in which the *records of*our County Courts are made up. *It is very*possible, that there was a vacancy in the district of Oxford, and that the power of the Court to make an appointment was full and complete, when they, in this instance, exercised it. As the record *now*stands, it does not so appear ; and the Court alone, where the record is, has power to rectify ¡such omissions or mistakes, as may in the hurry of business *275have occurred, by causing the record to exhibit the facts as they were. *State*v *McAlpin,*4 Ired. 140.

Per Curiam, Judgment affirmed.