Debt on a bond given by Harrison King as a constable in Cherokee County, and by the defendants as his sureties. It is in the penalty of $4,000, with the usual condition for the performance of his duties as constable, and bears date 14 January, 1840. The breaches assigned were the failure of King to collect certain claims placed in his hands by the relator, and applying the same to his own use. The pleas were non est factum and conditions not broken. The execution of the instrument was proved by the subscribing witness, who stated that it was given in the county court when King was admitted into the office of constable. To show that King had been duly elected and admitted, *Page 149 and, so, the bond duly taken, the plaintiff read in evidence (204) a paper purporting to be a transcript of a minute from the records of the county court at January Term, 1840, of the tenor following: "Harrison King comes into court and enters into bond according to law, and gives for sureties, J. W. King (and the other defendants), and is sworn in; it appearing to the court that said King was duly elected constable according to law." It was objected by the other defendants that the said minute had been altered, and it was admitted by the counsel for the plaintiff that the words, "it appearing to the court that the said King was duly elected constable according to law," had been added as an amendment by order of the county court sitting on the day previous to this trial. It did not appear upon the said record what justices or what number of them were holding the court when the said King was admitted and gave the said bond, or during that day. The entries being, "The court met according to adjournment," and then follows the above minute.
It was thereupon insisted for the defendants that the court had no power to alter the record, and that without such alteration it did not appear that King was duly elected; secondly, that it did not appear that King was sworn in as a constable; and, lastly, that the whole proceeding was void, because the transcript does not mention by whom the court in question was held nor show a sufficient number of justices present. But his Honor held the objections insufficient, and there was a verdict for the plaintiff and judgment, and the defendants appealed. This Court has so frequently had occasion to declare that the power resides in every court to amend the entry on its minutes or the record of its orders and judgments nunc pro tunc, and that no other court could incidentally question the verity of the record as amended, that we supposed the point would be no more made. We must take the record as it is, because duly certified to us, and we are not at liberty to inquire how it came to be as it is.
We think it does sufficiently appear upon the minutes and bond taken together that King was elected, admitted, and sworn (205) into office as constable. S. v. Fullenwider, 26 N.C. 364, shows that the entry, "it appearing to the court that said King was duly elected according to law," must be understood to mean that he had been elected by the legal popular vote; and it is necessarily to be inferred that he was sworn into the office of constable to which he had been thus elected.
We believe, however, that the remaining objection, as the case now appears, ought to have been sustained for the plaintiff's reliance is *Page 150 placed, on this point, on the act of the last session of the Assembly, 1844, ch. 38, which enacts that all bonds which have been taken by any court from one admitted into the office of constable shall be good; and it is supposed that thereby the objection to the sufficiency of the delivery or acceptance to the bond is removed. Upon that ground we would willingly support this bond, if we could; as may be seen from our judgment in S. v. Pool, ante, 105. But the question still remains whether this bond was "taken by any court" as required by the act of 1844. We think it does not so appear from the record that was read in evidence, because it does not set forth that the court was held by three persons or more who were justices. In Ludlow's case, Cro. Eliz., 738, a presentment in the quarter sessions was quashed upon certiorari because it did not state the justices before whom it was taken. It would seem that every record must set forth before what person or persons the proceedings were had and by whose authority that record was made. Sergeant Hawkins Cr. L. B. 2, ch. 255, sec. 23, states that it seems generally agreed that if the caption of an indictment at a session of the peace do not mention before whom it was holden, or if it set it forth generally as holden before justices of the peace without naming them, it is insufficient; and for that he cites Ludlow's case and several other adjudications which, we find, fully support him. The objection, when taken in S. v. Lewis, 10 N.C. 410, and S. v. Kimbrough, 13 N.C. 431, was overruled, not because it was deemed untenable in law, but (206) because it was untrue in point of fact. There the records showed that the court was held by a gentleman whom this Court knewex officio to be a judge of the Superior Courts of Law, being the courts of the highest criminal jurisdiction in the State. Therefore, the Court held that the record was sufficient in stating his presence, without setting forth his office. But it is plain it was thought necessary that it should be, at least, stated that the court was held by one that was a judge of the court, although it need not set out that he was such judge, as that was otherwise sufficiently known. Now, by law, three justices of the county court at least are requisite to constitute a court, Rev. Stat., ch. 31, sec. 5; and, therefore, it must appear by the record they keep of their proceedings that such number was present. If it be said that here the record purports to be the memorial of the acts of Cherokee County Court, and that, as three justices are necessary to form a court, the implication is a fair if not a necessary one that such court was held by three justices, the answer is that still it must appear that there were three justices, in order that we may see that the record was really made up under the authority of those who were competent to make it or have it made. It is arguing in a circle when it is said there were three justices because the record says it is the record of the court; for *Page 151 it must first be seen who made the record before we can tell whether it be the record of the court or not. We, therefore, think the judgment erroneous, and that it must be reversed. We, however, give this judgment very reluctantly, because we are almost sure that enough does, in fact, appear on the record of the county court to sustain the proceeding in that court. The case sent here confines the statement of the record to the entries on the day on which King qualified, as if that were conclusive on the point. But it is not. The court is but one court, from beginning to end, and the term but the first day, though actually lasting through several; and the adjournments are nothing in this respect, whether stated or admitted of record, S. v. Martin, 24 N.C. 101; and so, also, in the period of doing any act in the term, unless the law requires it to be done at a particular time; and the number (207) of justices present beyond three is immaterial, unless a certain number be requisite on special occasions. Foster v. Deans, 11 N.C. 299. We have never known the clerks of the county courts so extremely ignorant or negligent as not to set forth, at least the names of the justices before whom the court was begun for the term; and we have but little doubt that as much as that appears on the minutes of the term in question. If so, that would have done, for by intendment of law, for the purpose of sustaining any act appearing to have been done during the term, those persons held the court until it appear that others sat with them or took their place; and in making up the record in each case it may with propriety be stated that the court was held before them. However, that is matter for the next trial, when it will be seen how the fact in that respect is.
PER CURIAM. Venire de novo.
Cited: Jones v. Lewis, 30 N.C. 72; S. v. George, ibid., 329; S. v.Ward, ibid., 531; S. v. Corpening, 32 N.C. 60; Freeman v. Morris,44 N.C. 289; Link v. Brooks, 61 N.C. 500; Leak v. Com'rs,64 N.C. 135; Com'rs v. Blackburn, 68 N.C. 408; S. v. Davis,80 N.C. 389; S. v. Swepson, 83 N.C. 589; S. v. Swepson,84 N.C. 828; S. v. Butts, 91 N.C. 525; S. v. Warren,95 N.C. 676; S. v. Harrison, 104 N.C. 731.