#### WILLIAM BUCHANAN (plaintiff in error) v. B. B. McKENZIE (defendant in error.)

The statute, Revised Code, chap. 29, sec. 5, intends that motions for summary judgment against delinquent sheriffs, &c., shall originate in the county courts.

Where a statute requires that a proceeding shall originate in the county courts, and matters of fact are involved therein, which cannot be tried in the county court, because jurisdiction, to try issues of fact has been taken away by special act of Assembly, the proper course is for the issues to be made up in the county court and transmitted, by an order, or by a certiorari, to the superior court for trial.

"Writ ok error, before Saunders, J., at a Special Term, (June, I860,) of Richmond Superior Court.

The matter assigned for error in this case, is the same as in the case between the same parties, (ante 91,) except that in this case, the record does not show that the defendants below, mov ed in the County Court, to be allowed to enter pleas and have the same transmitted to ihe Superior Court for trial.

The Superior Court decided that there was no error in the judgment of the County Court, and ordered a procedendo, from which the plaintiff, in error, appealed to this Court.

In this Court, it was insisted that the provision in 5th section of chapter 29, Revised Code, requiring the county trustee to move for judgment “ at the first court, held for his county, after the first day of January in each and every year,” meant the first court having jurisdiction of the subject-mat-tor, and as this proceeding involved matters of fact, and jury 'trials had been abolished by the special statute for Richmond county, the County Court had no jurisdiction, and the judgment therein entered is void.

Leitch, Blue, Fowle and McDonald, for plaintiff (in error.)

Strange and B. S. Battle, for defendant (in error.)

Pearson, C. J.

In this cause, the plaintiffs, who were defendants in the County Court, so far as the record shows, did *96not move to be allowed to enter pleas, or to make up issues of fact to be tried by a jury; it, therefore, differs from the case between the same parties, in which an opinion is filed at this term, (ante 91). The only, question presented is, as to the jurisdiction of the County Court of Richmond.

Eor the purpose of this question, it may be conceded that a motion against' the sheriff and his sureties, on his bond, stands on the same footing as an action on the bond, the only difference being that the proceedings on the motion are to be summary — the writ, declaration and formal mode of proceeding, being dispensed with, to avoid unnecessary delay. So, the question turns on the construction of the statute, chapter 29, section 5.

It is contended for the plaintiffs, in error, that by this statute, the motion is to be made by the trustee, at the first court (having jurisdiction) held for his county, after the first day of January in every year; that as jurisdiction is taken from the County Court of Richmond by an act, relating to that county, passed in 1814, in all cases where a jury may be necessary, it follows that the County Court could not entertain the motion, and the judgment is void for the want of jurisdiction.

We do not concur with the counsel as to the construction of the statute. Taken in connection with the other sections, it is evident that the statute intended' that all of these matters, in' respect to the county revenue, should be instituted in the county courts; by section 1, the justices of the county court are to appoint a county trustee ; by section 5, the trustee is to make a motion against the sheriff, at Ihe first court held for his county, after, &c.; by section 6, the trustee shall settle, &c.; where there is no trustee, the cotort shall settle with their sheriff,&c.; by section Y, the court of pleas and quarter sessions shall allow the trustee reasonable pay, &c., and by section 8, at the first court which shall be held after the first day of June in every year, the trustee shall make settlement with the court, &c. The whole shows that the court meant, is the county court, and the 5th section shows “ the motion shall be made by the county trustee at the first term *97of said court, which shall be held for his county, after, &c.

It is clear, we think, that the motion must be made in the county court. But it is asked,, what is to be done in those counties where the county, court cannot try jury cases, and no jury is in attendance? Tho reply is obvious: wherever issues of fact are made up, the ease must be transmitted to the superi- or courts, as in. the case of the probate of wills, or after issues are made up on proceedings under a ca. sa., or in a bastardy case; the principle-being that where, by law, a matter is to originate in the- county court, that court has exclusive jurisdiction in the first instance, notwithstanding its-jurisdiction for trying issues.of fact, is taken away by statute, and it is only after issues of fact are made up, that the case is to be transmitted to the superior court by order of the county court, or by certiorari. See the case of Harris v. Hampton, 7 Jones, 597, in which State v. Sluder, 8 Ire. 487, and Fox v. Wood, 11 Ire. 213, are referred to, and. the question, in regard* to.non-jury, county courts, is fully explained. There is no error.

Per Curiam,

Judgment affirmed'..