#### C. DUDLEY’S EX’RS TO THE USE OF THE WARDENS, &c. vs. LEWIS T. OLIVER & AL.

It must appear on the record that amajority of the justices were present in the County Court when the poor tax was laid, otherwise the sureties in the sheriff’s hond will not he bound for it.

Appeal from the Superior Court of Law of Jones County, at the Spring Term, 1844, his Honor Judge Manly presiding.

This was an action of debt on a Sheriff’s bond, to which the defendants were sureties. Under the instruction of the court the jury found a verdict for the plaintiff, and judgment being rendered accordingly, the defendants appealed to the-Supreme Court. The facts are stated in the opinion delivered in this court.

J. H. Bryan for the plaintiff.

J W. Bryan and Iredell for the defendants,

Daniel, J.

This was an action of debt on the sheriff’s bond, mentioned in the case, given at May sessions, 1828, of Onslow County Court, by Brice Fonvjlle, sheriff, and the defendants as his sureties on the same. The breach assigned was that Fonville failed to account for the taxes intended to support the poor of said county, laid on the list of property for the year 1828. The defendants pleaded “ conditions performed” and “conditions not broken.” The plaintiff, to shew that the tax for the poor of the county, on the list of property for the year 1828, had been laid by the court at May sessions, 1829, produced a copy of the record of the said court of May sessions, 1829 ■, and the said record showed that the said court was composed of James Thompson, William Jones, William Mitchell, Luke Huggins and others, esqrs,; without stating that they composed a majority of the justices of the county. The act of assembly (Rev. St. ch. 89, sec. 9) declares that the County Court must be composed of a majority of the justices *228oí the county, when a tax for the poor is laid. The Judge instructed the jury, that the plaintiff was entitled to recover. We are of a different opinion. The defendants are sureties; they are not liable for the failure of the sheriff to collect and pay over any tax, not laid by a court having a majority of the justices on the bench, as no other court had authority to lay a lawful tax. The defendants were only bound, that Fonville should collect and pay over all lawful taxes. There must be a new trial.

Pee CuRiam, Judgment reversed, and a venire de novo awarded.