THE STATE v. S. BLAGGE and JOHN E. SOPER.

Under the ordinance of the 18th of October, 1865, concerning Revenue, a provisional sheriff', who has not given bond as reguired thereby, is not authorized to demand of merchants an account of their purchases, and of the taxes due from them.

Misdemeanor, in not rendering an account of their business, &c., as required by the ordinance of the 18th of October, 1865, concerning Revenue, &c., tried before Warren, J., at Spring Term, 1806, of Craven Superior Court.

The defendants wore merchants who had done business in Newbern as partners, from 1863 to 1866, and in January, 1866, they refused to render any statement of their business during 1865, to one Harper, who demanded the same as sheriff of Craven. It appeared that Harper was provisional sheriff, and had given Pond as such at the time of his appointment in July, 1865, but had not executed a hondas required by the ordinance.

Other questions were raised as to the power of the State to impose these taxes upon merchants who did business throughout 1865, in Newbern, but the opinion of the court renders it unnecessary to state the facts in connexion with this matter.

The court below charged the jury that, if they believed the evidence, the defendants were guilty. There was a verdict of guilty and judgment accordingly, from which the defendants prayed an appeal.

The Aito. Gen., also Phillips and Battle, for the State.

Manly and Baughton, for the defendants.

Reade, J.

There were several interesting and important questions very ably discussed in this case. But it is unnecessary, and so would be improper,'"to decide them, because *12it appears that, assuming every other question to be in favor of the State, the person who demanded the tax list from the defendants was not authorized to do so, and, therefore, of course, it was not a crime in them to refuse.

The ordinance of the Convention, entitled “ An ordinance to provide Reyenue for the year 1865,” ratified the 18th of October, 1865, provides (sec! 23,) that the provisional sheriffs shall assemble the magistrates of their respective counties, and enter into bonds, and “ thereupon such sheriffs are empowered to collect the taxes imposed by this ordinance,” “ Provided, that if such persons referred to as acting sheriffs refuse or decline to enter into the bonds required, then, and in that event, the justices may appoint other jiersons,” &c. It is evident that the Convention did not mean to entrust the provisional sheriffs with the collection of the taxes, unless they gave, new bonds. The provisional sheriff in this case did not enter into a new bond as required, and, therefore, he had no right to take tax lists, or to collect the taxes.

It is true that the General Assembly, on the first of March, 1866, (ch. 19, s. 1, Acts of 1865-’6,) enacted that those who were sheriffs at the ratification of that act should collect the taxes under the ordinance, in those counties where the provisional sheriffs had not renewed their bonds. But that does not affect this case, because the refusal of the defendants, for which they are indicted, took place in the January preceding’ the passage of the act.

His Honor charged the Jury that, if they believed the evidence, the defendants were guilty. In this there was error* And for that error there must be a venire de novo.

Per Curiam* Venire de novo.