J. F. Gore v. . M. Mastin , 66 N.C. 371 ( 1872 )

BoydeN, J.

Under our former system, it was jmade the duty of the County Court, at the first session held after the first day of April, annually to appoint for each captain’s district a Justice of the Peace to take a list of the taxable property. Rev. Code, ch. 99, sec. 58. This list taken by the Justice, of taxables, was to be returned to the Clerk of the County Court at the next term after the time prescribed for taking the list. see. 66, same chap.: and the Clerk of the Court was directed, on or before the 1st day of April, in the year ensuing- the taking of the lists, to deliver to the Sheriff of the county a full and accurate copy, in alphabetical order, of the lists. Sec. 81, same chap.: and the ■ Sheriff was directed forthwith to proceed to collect such taxes, sec 82. This list thus prepared and furnished the Sheriff, constituted the authority of the Sheriff"for the ■collection of the taxes, and was of the same force and effect as an execution issuing from the County Court upon a judgment therein rendered, in the matter of which the same Court had jurisdiction. It was no part of the duty of the Sheriff to inquire whether these taxes were properly laid or not; he was commanded forthwith to collect these taxes, and it was the duty of the tax-payers, to pay to the Sheriff these taxes thus assessed, when demanded. By section 87, chapter 99, the Sheriff is authorized, if need be, to destrain and sell the property of the tax-payer to satisfy the same.

In our case the Sheriff seized the mule for which this suit is brought, and sold it to satisfy the tax, which the plaintiff declined to pay. The Sheriff after retaining the tax and his costs and charges, tendered the balance of the price for which the mule sold, to the plaintiff. In all this the Sheriff was in the strict line of his duty. The Sheriff being a public officer was not bound to have a regularly certified list of taxables with him when he distrained, nor was he obliged to have any list with him ; it was quite sufficient that the list had been made ■out by the Clerk of the County Court and delivered to the .'Sheriff.

In this case the plaintiff had no cause of action against the Sheriff, as he was himself in fault in not paying his tax when demanded.

We suppose it was one of the objects of this action to test the legality of this Rail Road tax. It is sufficient to say that the legality of this tax cannot be tested in this way. State v. Fulton at this term. Huggins v. Hinson, Phillips law 126.

This renders it unnecessary to notice the questions as to the ¡rejection of the tax list offered by the defendant.

There is error. This will be certified.

Pee Cueiam. Venire de novo.