FROM WAKE. On the trial, before NORWOOD, J., the plaintiff produced a duly certified copy of the minutes of Rutherford County Court, setting forth —
1. The appointment of Alley, and the fact that the defendants were on the bench at the election.
2. The qualification of Alley, who, in the words of the copy, "enters into the following bonds, and none other."
Copies of the bonds were then inserted, which are:
1. A bond for two thousand pounds, payable to the "Chairman and the rest of the justices composing said County Court," with a condition to be void upon the collection and payment by Alley of all public, county and other taxes.
2. A bond to the governor for five thousand pounds, with a condition to be void if Alley should make due return of all process and pay and satisfy all moneys by him collected as sheriff, etc.
The defendants objected to the admissibility of this copy because it contained matters manifestly forming no part of the (16) records of Rutherford County Court, and particularly because it was not competent evidence to prove that no other bonds had been taken but those copied into the transcript, which fact they contended could not be proved by the transcript. This objection was overruled by the Judge, and the copy admitted to be read.
There was no other evidence offered, and the counsel for the defendants insisted that they were not, upon the true construction of the act of *Page 12 assembly, liable for an error of judgment committed in an honest endeavor to discharge their duty. That if they failed to take any bond, they were liable; but that it appeared in this case that they had taken a bond intended to secure the public taxes, and if the bond was insufficient to accomplish that purpose it was from a want of skill in the use of artificial language, in the person who drafted it, for which the justices were not liable, unless guilty of mala fides, or that gross negligence which is evidence of it. They also insisted that the clerk's certificate was not proper evidence to prove that the bonds copied by him were the only bonds taken, and that as the law presumed a public officer to perform his duty until the contrary appeared, that presumption ought to operate in behalf of the defendants. It was further contended that the action was barred by the statute of limitations.
The presiding Judge instructed the jury that a failure to take the bonds as required subjected the defendants precisely as if they were bound as sureties, that the question before them was, whether such a bond payable to the governor as that required by the act of assembly had been taken, and that upon this question they must look to the copy of the record produced in evidence — which the act had made full and complete proof — and that as the clerk had certified that "none other" bonds were taken his certificate must be regarded as true; that although one of bonds taken was conditioned for the payment of taxes, yet (17) it was made payable to the justices and not to the governor, as the act required, and that the only question was, had the act been complied with. For although it was true that by the common law justices of the peace are not answerable for errors of judgment committed in an honest attempt to discharge their duty, yet in the present case that rule could not aid the defendants, because the legislature had by the act of 1790 altered it, and extended the liability of a justice of the peace to such errors of judgment; and in the present case, it being shown by the certificate of the clerk that no other bond was taken, and that certificate being full evidence to that point, the bond taken was not the bond required by law, and that it was the duty of the justices to inform themselves of its insufficiency.
A verdict being returned for the plaintiff, the defendants appealed.
The cause was submitted, without argument. The bond taken for the collection of the public taxes is not such as the act requires, but it is one on which an action at law can *Page 13 be maintained, according to Bank v. Twitty, 9 N.C. 1; and the Governor v.Witherspoon, 10 N.C. 42. It is very unlike the case where the justices neglect to take any bond. I think, in the language of the defendant's counsel, they are not, upon the true construction of the acts of assembly, liable for an error of judgment committed in an honest endeavor to discharge their duty, but are so only in case they are guilty of malafides, or of that gross neglect which is evidence of it; and upon this ground and distinction I think the case ought to have been submitted to the jury.
An objection was taken to the certificate offered in evidence, because it contained matters dehors the record, the certificate (18) of the clerk being that the sheriff entered into the bonds copied into it, and none other. Whether proof that no other bonds had been entered into was indispensable on the trial of the cause it is not necessary to consider. But if it was, the clerk's certificate is not admissible evidence of it. The act of 1790 (Rev., ch. 327), directing the duty of justices in taking bonds of sheriffs and others, declares that a copy of the record of the Court, attested by the clerk, to be legal and sufficient evidence, and shall be admitted as such, and judgment shall be thereon accordingly. Therefore that which the clerk attested as a record was admissible, but that which he certified, not as a record, but as a fact, viz., that no other bond was given, was not admissible; he did not do it officially.
It has also been insisted by the defendant's counsel that the defendants are protected by the statute of limitations. It is to be observed that this is an action of debt, and cannot fall within the operation of the act of 1814 (Rev., ch. 879), That act bars all actions of debt grounded upon anyleading or contract without specialty. This is not an action of that description, nor is it barred by any clause of the act of 1715 (Rev., ch. 2); Johnston v. Green, 4 N.C. 129.
PER CURIAM. Judgment reversed, and new trial.
Cited: Bank v. Davenport, 19 N.C. 48; Cunningham v. Dillard, 20 N.C. 487;Peavey v. Robbins, 48 N.C. 341. *Page 14
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