#### The Governor v. Robert McAffee & others,

From Wake.

Dec. 1828.

Under the act of 1790, (Rev. ch. 327,) Justices of the Peace are liable to an action of debt only when they take no bond from the Sheriff — they are not liable where they have committed an honest mistake in the form of it.

The acts of limitations of 1715 and 1814, (Rev. chapters 2 & 879) do not bar the action against the Justices given by the act of 1790. Where the Clerk certified that “the following and none other” were the bonds executed by the Sheriff, the certificate was held not to be evidence that no other bond was given.

This was an action of Debt, brought against the Defendants as Justices of the Peace for the County of Rutherford, upon the act of 1790, {Rev. ch. 327) for not taking the bonds prescribed by law, from Frederick F. Alley, upon his election as Sheriff of that county on the second Monday of January, 1819. The action was commenced in August, 1823. The pleas were nil debet and the statute of limitations.

On the trial, before his Honor Judge Norwood, the Plaintiff produced a duly certified copy of the minutes of Rutherford County Court, setting forth,

1st. The appointment of Alley, and the fact that the Defendants were on the bench at the election.

2d. The qualification of Alley, who (in the words of the copy) “ enters into the following bonds and none other.”

Copies of the bonds were then inserted, which were, 1st. A bondfor £2000, payable to the “ Chairman and the rest of the Justices composing said County Court,” with a condition to be void upon the collection and payment by Alley, of all public, county and other taxes.

2d. A bond to the Governor for £5000, with a condition to be void if Alley should make due return of all process, and pay and satisfy all moneys by him collected as Sheriff, &c.

*16The Defendants objected to the admissibility of this copy, because it contained matters manifestly forming ^ par£ 0f the records of Rutherford County Court, and particularly because it was not competent evidence to prove, that no other bonds had been taken but those co* pied into the transcript, which fact they contended could not be proved by the transcript. This objection was overruled by the Judge, and the copy admitted to be read.

There was no other evidence offered, and tibe counsel for the Defendants insisted that they were not, upon the true construction of the act of Assembly, liable for an error of judgment, committed in an honest endeavor to discharge their duty. That if they failed to take any bond, they were liable, but that it appeared in this case, that they had taken a bond intended to secure the public taxes, and if the bond was insufficient to accomplish that purpose, it was from a want of skill in the use of artificial language, in the person who drafted it, for which the Justices were not liable, unless guilty of mala jides, or that gross negligence which is evidence of it. They also insisted, that the Clerk’s certificate was not proper evidence, to prove that the bonds copied by him, were the only bonds taken, and that as the law presumed a public officer to perform his duty, until the contrary appeared, that presumption ought to operate in behalf of the Defendants. It was further contended, that the action was barred by the statute of limitations.’

The presiding Judge instructed the Jury, that a failure to take the bonds as required, subjected the Defendants precisely as if they were bound as sureties-^-that the question before them was, whether such a bond payable to the Governor as that required by the act of Assembly, had been taken, and that upon this question, they must look to the copy of the record produced in evidence, which the act had made full and complete proof — and that as the Clerk had certified that “ none other” bonds were taken, his certificate must be regarded as true. *17That although one of the bonds taken was conditioned for the payment of taxes, yet it was made payable to 4 * 4 * the Justices and not to the Governor, as the act required, and that the only question was, had the act been complied with. For although it was true, that by the common law, Justices of the Peace are not answerable for errors of judgment, committed in an honest attempt to discharge their duty, yet in the present case, that rule could not aid the Defendants, because the Legislature had by the act of 1790, altered it, and extended the liability of a Justice of the Peace to such errors of judgment ; and in the present case, it being shown by the certificate of the Clerk, that no other bond was taken, and that certificate being full evidence to that point, the bond taken was not the bond required by law, and that it was the duty of the Justices to inform themselves of its insufficiency.

A verdict being returned for the Plaintiff, the Defendants appealed. •

The eause was submitted without argument, by Sea-■well & Badger, for the Appellants, and by W. IL Haywood, for the Plaintiff.

Hall, Judge.

The bond taken for the collection of the public taxes, is not such as tiie act requires, but it is one on which an action at law can be maintained, according to the cases of the State Bank v. Twitty & Ledbetter, (2 Hawks, 1,) and the Governor v. Witherspoon, (3 Do. 42). It is very unlike the case where the Justices neglect to take any bond. I think, in the words of the Defendants counsel, they are not, upon the true construction of the acts of the Assembly, liable for an error of judgment, committed in an honest endea-vour to discharge their duty, but are so only in case they are guilty of mala fides, or of that gross neglect which is evidence of itj and upon this ground and distinction, I think the case ought to have been submitted to the Jury. "

*18An objection was taken to the certificate offered in evi-deuce, because it contained matter dehors the record, the , 7 certificate of the Clerk being that the Sheriff entered into ^he bonds copied into it, and none other. Whether proof that no other bonds had been entered into, was indispensable on the trial of the cause, it is not necessary to consider. But if it was, the Clerk’s certificate is not admissible evidence of it. Tbe act of 1790, (Rev. ch. 527) directing the duty of Justices in taking bonds of Sheriffs and others, declares that a copy of the record of the Court, attested by the Clerk, to be legal and sufficient evidence, and shall be admitted as such, and judgment shall be had thereon accordingly.,, Therefore that which the Clerk attested as a record was admissible, but that which he certified, not as a record, but as a fact, viz. that no other bond was given, was not admissible; he did not do it officially.

It has also been insisted by the Defendant’s counsel, that the Defendants are protected by the statute of limitation. It is to be observed that this is an action of debt, and cannot fall within the operation of the act of 1814, (.Rev. ch. 879.) That act bars all actions of debt grounded upon any lending or contract without specialty. This is not an action of that description, nor is it barred by any clause of the act of 1715, (Rev. ch. 2.) Johnston v. Green, (1 Carolina Law Rep. 516).

Per Curiam. — Let the judgment below be reversed» and a new trial granted.