#### The President and Directors of the STATE BANK v. FREDERICK DAVENPORT, et al. Justices of Tyrrel County.

It is gross negligence, in the Justices of the County Court, to take from their clerk, as a bond, an instrument having no sum of money inserted in the body of it; and they will be liable therefor, as if they had taken no bond.

The Justices of the County Court may be proceeded against in a summary manner, under the act of 1809, (Rot. ch. 1002,) as the sureties of their clerk, for permitting him to officiate as clerk, without giving bond, as prescribed in the acts of 1790, (Rev. ch. 327); and 1809, (Rev. ch. 777.)

When a statute requires or directs a thing to be done in a particular court, as well as before a particular man, it cannot be done in or before any other. But where the subject-matter is within the jurisdiction of any court, an objection to'the jurisdiction of the court over the particular parties, must be made by a plea in abatement, and is too late after a plea in bar.

Upon an issue joined, on the plea of nil debent, to a proceeding under a statute against certain persons, as the sureties of the clerk, for not paying over money received by him officially, á verdict, finding certain special facts — as that the money mentioned in the notice was paid to the clerk on a certain day, and was demanded, instead of finding specially all the facts on which the defendant’s liability arose — or finding generally, that they owed the plaintiff, by reason of the matters set forth in the notice, the principal money demanded and assessed, and the interest, according to the statute — is defective.

The plaintiffs, by their attorney, issued a notice on the 15th of February, 1828, to the defendants, stating, that at the next term of the Superior Court for the county of Chowan, they would move the court for judgment against the said defendants, as being the justices who were upon the bench of the County Court of Tyrrel, when Wilson B. Hodges was appointed clerk of said court, and was permitted to officiate as such, without having first given bond according to law, for a certain sum of money which had been collected by the sheriff of said county of Tyrrel, on an execution in favour of the plaintiffs, and paid by him into the clerk’s office, while the said Hodges was officiating under the appointment aforesaid, which sum, the notice further stated, the defendants were bound to pay; and for which they were proceeded against as the securities to the said Hodges’s clerk’s-bond would have been, had he given any, according to the act of assembly in such cases made and provided. Upon the return of *46this notice, the defendants appeared, and put in the pleas of the “ general issue,” and “ that there was no demand ma(^e Previous to the service of the notice.”

At October Term, 182S, of Chowan Superior Court, case came on to be tried before his Honor Judge Strange, when it was proved, that the sum demanded by the plaintiffs was received by Hodges, in his official character as clerk of Tyrrel County Court, from the sheriff of the said county, it being the amount of an execution collected by the said sheriff, for the plaintiffs ; and that the said money had been demanded of the said clerk by the plaintiffs’ attorney, previous to issuing the notice. It was proved, by the records of Tyrrel County Court, that the defendants were the justices who were upon the bench; when Hodges was appointed clerk; under which appointment he was acting, when the money in dispute was paid to him. The same records also stated, that a bond had been given by Hodges; but the bond which was produced, and which had accompanied the record, was defective, in having no sum whatever inserted in the body of it. The jury, upon this evidence, returned the following verdict: “ that the money mentioned in the plaintiff’s notice, was paid to the clerk of the County Court of Tyrrel, at July Term, 1827; and that a demand was made by the present plaintiffs, upon the said clerk, Wilson B. Hodges, previous to instituting this action.”

Three objections were made by the counsel for the defendants, to the plaintiffs’ recovery, viz.

1st. That although no evidence was offered, as to the residence of either of the parties, yet that the court could judicially know, that the State Bank, being a corporation, could not have a residence anywhere; and that the Justices of Tyrrel could not live in Chowan; so that the Superior Court of Chowan could not have jurisdiction of the case.

2nd. That the same record which stated the fact, that ■the defendants were upon the bench, at the time of the clerk’s appointment, proved that a bond had been given; therefore the plaintiffs could not, or if they could, had not shown, that the defendants had failed to take a bond.

*47Sd. That the act of 1819, (Rev. ch. 1002) only gave the summary remedy against the sheriffs, clerks, and officers, and their sureties, eo nomine, and did not extend . • • r-to the justices, who, by the acts of 1790, (Rev. ch. 327,) and 1809, (Rev. ch. 777,) were rendered liable to all the responsibilities there existing, and liable to be proceeded against, in the same manner that the sureties might then be, as a penalty for their neglect in taking no bond, pursuant to the duty of their office; and that the justices, not being mentioned in the act of 1819, giving the extraordinary remedy resorted to by the plaintiffs, could not be subjected in that way.

His Honor overruled these objections, and gave a judgment for the plaintiffs, for the sum demanded, with interest; and the defendants appealed.

Cameron, for the plaintiffs.

Badger, for the defendants.

Ruffin, Chief Justice.

The act of 1819, (Rev. ch. 1002,) gives a creditor a summary remedy, by motion, triable at the first term, against a clerk, sheriff, and other officer, “ and against any or all of his sureties.” The act does not expressly give the same remedy against justices of the peace, who have rendered themselves responsible for the acts of the officer, by failing to take a bond from-him, according to the provisions of the previous acts of 1809, (Rev. ch. 777,) and 1790, (Rev. ch. 327.) The counsel for the defendants, contends, upon this, that the justices are not liable, in this form of proceeding, because the words embrace only those who are not simply bound legally for the officer, but are bound also in point of form, as his sureties, by contract — especially, as the liability of the justices does not depend upon the mere fact of not taking such bond as the law requires, but arises only in cases of voluntary omission, or gross neglect. If the act deprived any party of a matter of defence, which he would have, if sued in a common law action, it could not embrace any persons, but such as are mentioned in it nominatim. But every bar to the recovery is open in this method of proceeding, as in any other; and the only *48difference is, that the trial is to be at the first term, in order to render a judgment already recovered by a course of law, effectual. The defendants therefore, if their case had justified it, might have insisted, that they ^acj ¡jQjjgg^y done their duty, to the best of their judgment. But it is clear, that such a defence would have been altogether unfounded. It is not like the case of the Governor v. M‘Affee, 2 Dev. 15; for there a bond was taken, which was good at common law, though it did not conform to the statute, so as to authorize a summary remedy on it. But here, upon non est factum, what is called a bond of the clerk, must be found not to be a deed. It is so plain a case, as to amount to crassa negli-gentia, which proves not the defect of judgment, but the want of disposition in the justices to do their duty. If the defendants are thus clearly liable, the remaining question is, why should they not be summarily 'l They are grossly culpable, for not providing the public with a formal security; and have no pretence to object to this remedy, if their case be within the mischief, and within the intent of the act. It certainly falls within the mischief, which was the delay in paying over to the creditor his money, collected by the authority of the law; and that delay is equally mischievous, whether interposed by one set of persons bound for its payment, or by another set. But when we come to look at the acts of 1790 and 1809, they appear to be very strong. They not only make the justices liable for the officer, but they enact, that they “shall be considered bound to all intents and purposes,” and are declared to he bound, as the sureties of the officer, in the same degree, and in the same manner, as though they had been formally hound, “by entering into and executing bond with and as the sureties of such officer.” These provisions, we think, express the purpose of the legislature so clearly, that we cannot refuse to bring the justices within a subsequent beneficial and remedial statute, affording a speedy remedy against those who are liable as officers, and as the sureties of officers. That is the character given to statutes of this kind. Oats v. Darden, 1 Murph. 500.

*49is to be applied to summary proceedings in a court of record, as before an inferior court. We do not doubt, that if a statute requires or directs a thing to be done in a particular court, as well as before a particular man, it cannot be done in or before any other. 1 Plow. 206. But this act does not confer a special jurisdiction on any particular court. On the contrary, it gives the motion “ in any court having competent jurisdiction;” which, we think, clearly refers to the subject-matter, as being within the jurisdiction of one or more courts, according to the general law. The subject-matter was within the jurisdiction of the Court of Chowan; though that court would not have exercised its jurisdiction between these particular parties, if it had been declined, by a plea in abatement. We think, therefore, the points made by the exceptions are in favour of the plaintiff. Another objection is to the jurisdiction of the Superior Court of Chowan, as the plaintiffs did not reside in that county, and the defendants are officers and residents in another. We think the objection would be unanswerable, if it had been taken in proper time; but it is too late, after a plea in bar. It is insisted, however, that the same rule

Nevertheless, the court is constrained to reverse the judgment, and order a venire ele novo, for a defect in the verdict. The defendants pleaded nil debent, and the jury have found certain special facts, that the money mentioned in the notice was paid to the clerk on a certain day, and was demanded, instead of finding specially all the facts on which the defendants’ liability arose, or finding generally, that they owed the plaintiff, by reason of the matters set forth in the notice, the principal money demanded and assessed, and the interest, according to the statute.

Pun CüRiam. Judgment reversed.