
    Bowman and Another v. The State on the Relation of Stewart.
    Debt by The. State on the relation of S., the clerk of the Carroll Circuit Court upon a sealed note made payable to W. C., school commissioner, or to his successor in office, and given to secure a loan of funds belonging to congressional township No. 26, <&c., in Carroll county. By an act of 1844 the office of auditor in said county was abolished and its duties transferred to the clerk of the Carroll Circuit Court. By an act of 1849 the office of school commissioner was abolished and its duties transferred to the auditor and treasurer. Held, that by the act of 1844 the clerk of the Carroll Circuit Court became ex officio the auditor of said county, and it was his duty to bring the present suit; but, held, that, under the E. S. 1843, it should have been brought in the name'of the payee of the note.
    
      Friday, December 3.
    ERROR to the Carroll Circuit Court.
   Smith, J.

Debt by The State on the relation of Stewart, clerk of the Carroll Circuit Court, against the plaintiffs in error upon the following sealed note :

“Five years after date, we, or either of us, promise to pay to William Crook, school commissioner, or to his successor in officg, two hundred and twenty-five dollars, with interest thereon, payable annually in advance, at the rate of eight per cent, per annum, it being of funds belonging to congressional township No. 26 north, of range 2 west, in Carroll county. Value received. Witness, our hands this 24th day of August, 1842.”

There are four counts, all of a similar character. General demurrer to each count and judgment for the plaintiff.

The plaintiffs in error contend that the suit is not rightly brought in the name of the state on the relation of the clerk of the Carroll Circuit Court, and we think their objection is well taken.

It is provided by s. 108, c. 13, R. S., that for all moneys due the congressional township fund, remaining unpaid, the county auditor shall cause suits to be instituted in the name of the'obligee or payee of the instrument sued on, and the money recovered to be paid to the school commissioner of his county, &c.

A. H. Evans, for the plaintiff.

D. D. Pratt and H. Allen, for the defendant.

The office of auditor in Carroll county was abolished by an act dated January 13th, 1844, (p. 48), and its duties transferred to the clerk of the Circuit Court. By the act of January 17th, 1849, (p. 124), the office of school commissioner is abolished and its duties transferred to the auditor and treasurer.

The clerk of the Carroll Circuit Court may, in consequence of the act of January 13th, 1844, be considered as ex officio the auditor of that county, and it was his duty to cause the suit to be brought, but it was unnecessary to make the state a party. It should have been brought in the name of the payee of the note. See Thompson v. Weaver, 7 Blackf. 552.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  