#### Thomas Rhodes v. Neill Buie,

From Robeson;

It is the duty of the C’erlt of tlie Comity Court to publish the lists off ta-.ab es and insolvents, in the mode prescribed by the act of 1786, {Rev. c. 255) in the state in which they are returned to him, notwithstanding they may be incomplete.

The act of 1786 is not repealed by the acts of 1S14 and 1817 {Rev. e. 872 & 945) authorising the County Courts to assess County and Poor taxes.

This was an action of debt brought against the De* feudmt, who is the Clerk of the County Court of Robe* son, for the penalty imposed by the act of 1786 (Rev.c. s&&5) fop not setting up in some conspicuous part of tfi© *525Court bouse, an alphabetical list of the taxables, and for not ad' ertisiug the- list of insolvents returned to August term, 1820, of the County Court.

The Plaintiff havii g made out a prima facie case, the Defendant proved that one of the Justices who bad been appointed at May term, 1826, to take the lists of taxa-bles. had made i o return, and that the Sheriff had also omi t d '0 make out his list of insolvents — it was insisted for him, that as the i darns were'not complete, it was not his duty (:o put up (he defective lists which were returned. D’was abo contended in his defence, that the acts of 1814 and 1817 fliev.e. 872 &945) had rendered it impossible for the C!d k to perform th< duties required by ‘lie act of ¡786, and were a repeal of it. His Honor Judge Norwood being of this opinion, the jury, under his ins'roctio'is, retoñad a verdict for the Defendant, and the Plaintiff appealed.

Dec. 1830.

No Counsel appeared for either party in this Court.

Hall, Judge.

By the act of 1786 (Rev. c. 255,J it is made the duty of the Clerk f the County Court at tin next Court, af'er the lists < f taxable property shall be r turned by the Jxsfircs appointed to take them, to s -r op in the Con;t bouse an alphabetical list of the taxahh-s and taxable .pv ipet -y, and for not performing the duties required by this act a penalty of fifty pounds is imposed, to be recovered by any person who will sue for it. Before tins duty can be performed by the Clerk, it is necessary, that lists of taxation should be returned in due time by I be Justices, it is also necessary, that the Sheriff should make a return of insolvents. But if the Sheriffs fail to make such return, or if the Justices omit making due retir» of the lists of taxables and taxable property, which they were authorized and required to take, it would be impossible for the Clerk to perform, the duty required of him, But if one of the Jnstices,, as *526jn t|¡0 present case, omits making due return of the lists, w|,jc], ¡,al5 |icell assigned to him to take, to be - sure the Clerk cannot supply surli omission ; but that is no reason why he should not perform his duty in setting up for public inspection, such lists as had been returned by the other Justices.

By tiie act of 1798 ('Rev. c. 506) it is made the duty of the Clerk to add to each person’s taxable property the amount of tax for which iie is liable; but for the non-performance of this duty, the act imposes no penalty. The penalty is confined to (he duties imposed by the act of 1786. By the act of 1814 (Rev. e.872, s. 18) the County Courts are directed, at the first Court which shall happen after the first day of January in every year, to lay a tax for defraying the comity charges, it would be impossible that this tax should be inserted in the lists of taxation, which by the act of 1786, were directed to be setup. Of course there can be no penalty incurred on that account. The same remark may be made as to the act of 1817 (Reo. c. 945). I cannot bring my mind to believe that these acts, or any one of them, is a repeal of the act of 1786.

In fact, this suit is brought for the non-performance of the Clerk’s duties, as imposed by the act of 1786 ; but not for the non-performance of the duties imposed by any of the subsequent acts brought into view in this case. I think the penalty was incurred, by not putting up such lists as were returned under the act of 1786. But it could not be incurred by not putting up such list as was not returned. For this he was in no fault.

Per Curiam. — Let the judgment of the Court below be reversed^ and a, new trial awarded.