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State v. Woodside.

Brunswick, and his sureties. The breach assigned is for collecting and not paying over the County taxes assessed for the year 1843. On the trial below, several objections were urged against the plaintiff's right to sustain his action, and being all reserved by the Court, by the consent of the parties, with liberty to enter a non suit, the duty is imposed upon us of considering the whole. We will proceed to do so in the order, in which they stand.

The first objection is, that no tax was legally imposed by the County of Brunswick for the year 1843; because, by the private acts of 1831 and 1835, the magistrates of that County were directed to divide themselves into classes for the purpose of holding the County Courts, which had never been done ; therefore, no number less than a majority could lay the tax, and in this case it was admitted, that a majority was not present. This objection was substantially answered by this Court in the case of the State to the use of Owen against these defendants, s ed. 106. That action was brought on the official bond of the defendant Robert Woodside and his suretics, to recover the County taxes for the year 1812. The same objection was taken there as here, and being insisted on, as it is now, did not receive that specific answer it ought to have done. It was not, however, overlooked, as is supposed, but was considered to be overruled by the opinion given. It was decided, that, under the 6th section of the act of 1831, ch. 154, three magistrates were competent to hold the Court, and lay the County taxes.

It is not stated in so many words in the opinion given, that this might be legally done, although the magistrates had not classed themselves, but was so substantially, for the opinion states, that the mag. istrates were required to class themselves. The 6th sec. tion of the act of 1831 expressly gives to the magistrates, who do attend, the power to do any business that a majority is required to do, which shall be as valid as if done by a majority. We were of opinion then, as we still are,

State v. Woodside.

that, although the magistrates were required to class themselves and had neglected so to do, a Court composed of any number was competent to lay the taxes. One de. sign of the act was to remedy an evil, felt and complained of by all who were in the habit of attending the Coun. ty Courts. It is an eld trite saying, that what is every body's business is no body's business. By the general Jaw, it is made the duty of all magistrales to hold the Terms of the County Court, and it is found by experience, that much delay occurs, in many instances, in organizing the Court and in retaining a sufficient number of Justices on the Bench for the transaction of business. It was the object of the act of 1831 to remedy this evil, by causing the magistrates to divide their number into classes, containing five members, whose duty it should be to hold three respective Terms of the Court, and when so classified, that a majority of the acting class should be compe tent to do and transact all the business that seren could do. But that they did not intend to confine the power to assess the taxes to the magistrates in their respective classes, is manifest from the fact, that, if that were true, the words quoted from the 6th section would be tautolo. gical and unmeaning, as that power was granted to the classified members by the 3rd clause of the act. It is, however, contended, that the act of 1831 is repealed by that of 1835. To a certain extent this is so; wherever it makes provision for the saine thing in a different manper, it does repcal the act of 1831. Every affirmative statute is a repeal by implication of a prior affirmative statute, so far as it is contrary to it; for the maxim is " leges posteriores priores abrogant.But the law does not favor these implied revocations, nor is it to be allowed, unless the repugnancy be plain, and where in the latter act, there is no clause of non obstante, it shall, if possible, have such construction, that it shall not operate a repeal. 6 Ba. Ab. Slut, letter D. p. 373. 11 Rep. 63, Fosters case.

State 0. Woodside.

The statute of 1835 is in pari materia with that of 1831, and its provisions must be pursued, when contradictory to the latter. The 4th section is the one relied on, as bearing on this case-as repealing the 6th section of the act of 1831. The first portion of the section we are considering, down to the first proviso, embraces, with an immate rial variation, the 3rd section of the act of 1831. The first proviso secures to all the other mugistrates of the County the right to hold the terms of the County Courts, which was omitted in the preceding act. The second proviso relates to the taking of the sheriff's bonds, giving to the Justices, who are absent when the bonds are taken, time, until the succeeding term, to require additional sureties on the bonds, if they deem it necessary. So far, then, as that section makes arrangements different from and in. consistent with the provisions of the act of 1831, it is a repeal of it, but no further, as there is no non obstante clause in it. But in the 6th section there is an important provision, entirely omitted in the act of 1835, and the lat. ter contains nothing inconsistent with it; I mean the clause, giving to any three magistrates, power to do any act, which, by law as it was at the time of the enactment of 1831, was required to be done by a majority of the act. ing Justices. The latter provision is not repealed by the act of 1835, and the taxes were in this casc assessed by a competent Court.

The next objection is to the tax list furnished by the Clerk. The case states that it was inade out by the Clerk from a document in his office, which contained an aggre. gate valuation of the real estate in Brunswick, and the number of black and white polls, with the names and amount to be collected out of each tax payer. If the ob. jection were a sound one, it does not lie in the defendants' mouths to make it. The sheriff received it as the tax list and under it did collect the taxes, mentioned as due on it. Whether the tax list were a full and legal one, or not, is

State v. Woodside.

not important; for, we have decided, in the case of State r. Woodside et al, that it is the duty of the sheriff to apply to the office and get a list, but it is not necessary for him to have the list when he collects the tax-he cannot, with. out a proper tax list, enforce a collection, but may re. ceive without it.

The third objection is to the competency of Mr. Baker, the plaintif's Attorney, to give evidence for him in the case. It appears from the case of Bundy v. Bullett, 16 Mus. & Willy, 615, N., that sueh a rule has been adopted by the English Courts. It is to be remembered, that in England there is a material difference between the office of counsellor and that of an Attorney, and that in the case referred to, it was an attorney, whose testimony was offered in evidence. In this State there is no such distinc. tion known-every attorney with us is also a counsellor. Be this as it may, it has been the uniform practice in our Courts to receive such testimony. It is a practice not to be encouraged, and in most cases has, we believe, been accompanied by a surrender, on the part of the attorney, of his brief i:. the case.

The fourth objection is, that there was no record, showing that the relator ever had been duly appointed County Trustce. From the state of the pleadings this objection is not open to the plaintiff. He has accepted a declara. tion from the plaintiff, and has not by any plea denied, that the relator was the County Trustee. His pleas are, non est factum, payınent, and conditions performed. It would be a complete surprise on a plaintiff to suffer this defence to be sprung upon him, under either of these pleas,

The fifth exception is answered in replying to the third.

The sixth objection is, that the plaintiff had not shown any demand. It has been decided in this Court, in the case of State v. McIntosh, 9 Ire. 307, that where a public officer collects monry due to the State, no demand is ne. cessary. It is the duty of the officer to pay it into the

State v. Woodside.

proper office, when collected, and it is a breach of his official duty not to do so. Mr. Baker proved, that the sheriff, Woodside, admitted to him, he had collected the taxes, for which this action is brought.

It was finally objected, that the County Trustee was not the proper person to relate in this case. The case of the State v. McIntosh is relied upon to show, that, by the general law, the County Trustee cannot be the relator to recover the County revenue. That case is no authority for the position assumed. The portion of the opinion relied on is the answer to the defendant's first exception. The question was, whether, in that action, the County of Moore, or the Chairman of the County Court, was the proper relator. This depended upon the true construction of a private act, passed in the year 1835, for the benefit of the County of Moore. In making this construction, the Court adverted to the peculiar phraseology of the private act, and also to that of the 3rd section of the act of 1777, directing “the County Trustee to sue for, recover and collect," from all persons, all money due his County, In commenting on that section, the Court say: "but no direction is given in whose name the suit shall be brought.” In the succeeding sentence the meaning of the Court is made manisest. It is in these words, "at the time, then, the private act of 1835 was passed, no law existed di. recting the Trustee, in so many words, to sue in his own name." The case is no authority for the objection as. sumed here.

The judgment below must be reversed and judgment given for the amount rendered by the jury in their verdict.

RUFFIN, C. J. The private act of 1831, ch. 154, first provides, that the Justices of Brunswick shall classify themselves, and then it defines the powers, duties, and responsibilities of the several classes. It then adds, as &

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