#### THE STATE, ON THE RELATION OF JOHN N. MURRAY, *vs.*WILIE JONES.

Where a sheriff’s bond had been taken in 1838, only three justices of the County Court being present, and the bond was only for $4,000 instead of $10,000 as required by law ; *Held,*that these defects were cured by the Act of 1844-5, which had a retrospective, as -well as-a prospective, operation.

Th8 case of the *State*v. *Pool,*5 Ired. 105, cited and approved.

Appeal from the Superior Court of Law of Buncombe County, at the Special Term, in June 1845, his Honor Judge Caldwell presiding.

This was a suit on the bond of the defendant, executed in October 1838, as sheriff of Buncombe. It appeared from the record of the County Court, that, when it was taken,-there were but three Justices of the Peace on the bench, and the bond appears to be in the penal sum of four thousand dollars,instead often thousand,as required bylaw. The defendant’s counsel, moved that the plaintiff be non-suited, on the ground that there were but three justices, who received the bond, and because it did not contain the penalty required by statute. The question was reserved, and the relator, on the breaches assigned, had a verdict. The Court, on consideration, refused to-non-suit, *362on tbe ground that the defects were cured by the Act of 1844-5. and on the ground, that, if not cured, the bond was a good bond at common law. Judgment for the plaintiff and appeal by the defendant.

*N. W. Woodfin,*for the plaintiff.

*Francis,*for the defendant.

Nash, J.

This suit was commenced in 1842 ; and, according to the decisions of this Court, theretofore made, the plaintiff could not have maintained his action. In carrying out the will of the Legislature, as expressed in their acts passed at various times, a series of decisions had been made by the Courts ; the effects of which were to deprive those, who put business into the hands of public officers, or of those who assumed to act as such, of a large portion of the protection they ought to receive. From year to year, as these evils were brought to their notice, remedies were applied by the Legislature, until, at the Session of 1844-5, an Act passed, which, it was hoped, had remedied and provided for every mischief and defect, which had previously been found to exist. That Act provides “ that all persons, who shall be admitted by the County Court and sworn into the office of Sheriff, Coroner or Constable, shall be held and deemed to be rightfully in office, until ousted by due course of law; and that all bonds which have been, or may hereafter be, taken by any Court of Pleas and Quarter Sessions, upon admission of any person into either ‘of the said offices, shall be held and deemed to be valid and effectual to all intents and purposes, notwithstanding any defect, insufficiency or irregularity in the election, appointment or admission of such person, or in any of tbe proceedings of the Court in relation thereto.” At the December Term, 1844, of this Court, the case of *The Stale at the relation of Jordan*& *al. against Fool,*was decided, 5 Ire. 105. The action had been commenced prior to *3633843, and it was a point of the defence, that the Act of 1844 could not apply to it, so as to alter or change the principles, upon which it was to be determined.- There, as here, the records of the County Court did not shew, that a majority of the Justices were present, when the bond, on which the action was brought, was accepted. But the Court was of opinion, that, although this was a - fatal objection, at the time the action was instituted and the pleas were entered, yet that it was perfectly competent to the Legislature to ratify the delivery, previously made to a third person, of the bond, as it was payable to the State ; and that it had done so by the Act of 1844-5. In other words, that the latter Act embraced, as well bonds made before its passage, as those made afterwards. This decision disposes of the first objection made *by*the defendant.

Another objection has been taken, which is equally untenable. The Act, regulating the electionof Sheriffs, requires him, before he enters on the discharge of his official duties, to enter into bond, with two or more good and sufficient sureties in the penalty of $10,000,” &c. *Rev. Stal. ch.*119, *sec.*13. In the present case the penalty of the bond is $-4,000. Before the Act of 1844-5, this wo-uld have been a fatal objection to it, as an official bond. The error, however, is cured by the second clause in the Act referred to. The language is, “ and that bonds, which have been, or may be, taken, &c. upon admission of any person into either of the offices, shall be held and deemed valid and effectual to all intents and purposes, notwithstanding any defect, insufficiency or irregularity, &c., or in any other proceedings of the Court in relation thereto.”' This bond was taken by the Court, on the admission of the defendant, Jones, into the office of Sheriff.

These are the only objections which were taken to the plaintiff’s recovery in the Court below, and the only ones,which have been or couldTbe considered here,-

*364We perceive no error in the opinion of the Judge, who tried the cause, and the judgment must be affirmed.

Per Curiam. Judgment affirmed.