
    State vs. Witherspoon and Mack.
    
      1. A merchant’s bond, under the act of 1835, chap. 13, see. 7, to give a state ment of goods, and to pay thereon Stale and County taxes, at the end of the year, which is payable to the Governor and his successors in office, is a valid bond, though it do not state that the bond is for the use of the State, as declared in that statute. The Governor is a trustee for the State, and a recovery enures by law to the State.
    2. An averment of breach of the condition of a merchant’s bond under this act, is sufficient if it charge that defendant did not make the statement, and did not pay the taxes, &c. It need not aver that defendant received and opened goods, and that such goods were liable to taxation.
    3. It will be presumed that a bond, taken under a statute, to secure the performance of a public duty or obligation, was taken by the proper officer, unless the contrary appear by exhibit of the bond.
    4. A declaration on a merchant’s bond, executed to the Governor for the use of the State, may well charge that defendant “owes and detains” the penalty.
    5. It was objected that a declaration for a penalty on a bond under this act, should conclude “against the'form of the statute.” .The court held that if this be required in a declaration under the statute, it can only be taken advantage of by special demurrer.
    The 5th sec. of the act of 1835, chap. 13, provides for the issuance of licence to retail merchants, and fixes the tax thereupon. The 7th section provides, that every retail merchant, &c., &c., shall, before commencing business, enter into a bond, with approved security, before the clerk of the County Court, in the sum of five hundred dollars, payable to the Governor for the time being, and his successors, for the use of the State, with condition, that he will, twelve mouths from the date of such bond’ render, on oath, to said clerk, a just and true statement of the amount of goods, wares, and merchandize, jewelry, groceries, .and drugs, he has received and opened for sale since the date of his bond, and pay to the clerk the amount of taxes that may arise and be due on such goods, &c.> according to the rule prescribed by the 5th section.
    Under this act, suit was commenced in the Circuit Court of Wayne County, in the name of the Governor, N. S. Brown, for the use of the State against Mack and Wither-spoon, and the declaration was as follows:—
    “Neil S. Brown, Governor of the State of Tennessee, and successor to A. Y. Brown, late Governor of said State, who sues for the use of the- State, by attorney complains of F. Witherspoon and S. Mack, who are summoned to answer the plaintiff for the use aforesaid, in a plea that they render ' to him the sum of five hundred dollars, which to him they owe, and from him unjustly detain; for that the said Mack and the said Witherspoon, on the 9th day of November, 1846, in the county of Wayne, by their certain writing obligatory, sealed with their seals, and now here shown to the court, bearing date the year and day above mentioned, acknowledged themselves held and bound to A. V. Brown, Governor of said State and his successors in office, in the sum of five hundred dollars above demanded, which writing was and is subject to the. following condition, to wit: ‘ The condition of the above obligation is such, that whereas the above bound Franklin Witherspoon has this day obtained from the clerk of the County Court of Wayne county, a licence to retail goods, wares, merchandize, drugs» medicines, groceries, &c., at his establishment in Waynes-boro, Wayne county, Tennessee, for the term of one year from the date thereof; Now if the said Witherspoon shall well and truly, at the expirátion of said term, render on oath to said clerk the amount of goods, wares, and merchandize, by.him purchased during said term, and pay the State and County tax thereupon, so that the State and County shall sustain no loss thereupon, then this obligation to be void; otherwise to remain in full force and virtue, and the said plaintiff, for the breach of the condition above recited, avers and says that the said Franklin Witherspoon did not well and truly at the expiration of said term, render on oath to said clerk the amount of goods, wares, merchandize, &c., &c., by him purchased during said term, and did not pay the State and County tax thereupon, so that the State and County did not sustain any loss thereupon, but wholly failed and refused, and still doth fail and refuse so to do, whereby an action accrued to said plaintiff for the use aforesaid, to recover the sum aforesaid of five hundred dollars,” yet the said defendants wholly fail and refuse to pay the same or any part thereof.
    And the following appears: “ And the said defendants by attorney come and crave oyer of the said bond, which is read to them with its condition, and say actio non, because they say, that said declaration is not sufficient in law, &c., &c., and show to the court the following causes of demurrer, to wit: — ■
    1. Said suit is in the name of N. S. Brown, Governor, and for the use of the State, and varies from the bond.
    2. Said bond is payable to A. V. Brown, and not N. S. Brown.
    3. The action is laid in the debet and detinet.
    4. There is no sufficient breach.
    There was a joinder in demurrer, and judgment was given by Bullock, special judge, in favor of defendants.
    The State by Attorney General, Hill, appealed.
    
      Attorney General, for the State.
    
      N. Baxter, for the defendants.
    This declaration is defective in the following particulars:
    1. It should conclude “against the form of the statute.” It does not so conclude. 1 Chit. Plead., 405, 406.
    
      2. To make this a good statutory bond, so as to enable N. S. Brown to maintain the action as successor of A. V. Brown, it should appear from the declaration that the defendant was a merchant — there being no authority in law to take such a bond from any one else than a merchant, druggist, &c.; act of 1835, chap. 13, sec. 7; Green vs. Bum-pass, Martin and Yer., 94; 1 Chit. Plead., 405; State vs. Smith, 6 Hum.
    3. The bond does not appear to have been taken by the clerk of the County Court of Wayne county, or to have been acknowledged before him. No body else had authority by virtue of the statute to take such bond: act of 1835, ch. 13; and this defect is not covered by the act of 1844, chap. 103, sec. 14. That act only applies to the bonds of collecting officers.
    4. It is not averred in the declaration, that defendant Witherspoon did purchase any amount of goods, wares, or merchandize, &c., within twelve months next after the date of the bond, and in that event he would not be required to render any oath, or to pay any tax at the expiration of the twelve months. Act of 1835, 1 Chit. Plead., 405.
    5. The declaration should not only aver that the defendant did purchase goods, wares, and merchandize within the twelve months, but that they were such goods, &c., as were not exempt from taxation; for merchants are not required to render an account of such goods purchased as are exempt from taxation. Act of 1835, chap. 13; M. and Y., 94; 1 Chit. Plead., 405-6.
   McKinney, J.

delivered the opinion of the court.

The judgment of the Circuit Court in this case, sustaining the demurrer to the declaration, we think altogether erroneous.

Of the various causes of demurrer assigned upon the record, or stated in argument, there is no one well founded.

1. The bond declared on, is a good statutory bond, and the statement in the declaration, that the suit is for the use of the State, is, at most, mere surplusage; it would not be, however, good cause even of special demurrer, because this is according to the legal effect, as the recovery enures to the -State.

2. The bond, in legal contemplation, is to the incumbent of the office at the time of the breach; the suit thereon is in his own name and right, though as trustee; and, therefore, may.be sired and declared upon in the debet and detinet.

3. The breaches assigned in the declaration, precisely negative the conditions of the bond, and are, therefore, sufficient and in proper form,

4. The occupation or profession of the defendant appears from the condition of the bond set forth in the declaration, which he is estopped to question, and need not have been otherwise averred.

5. The bond is not set out on oyer, and there is nothing to show that it was not taken by the proper officer, and in the mode prescribed by law, as the law will intend in a case like the present, until the contrary is averred and shown.

6. If the defendant did not, in fact, purchase any goods,*, during the year, for which the bond sued on was given; or if the goods were of a character, not falling within the operation of the bond, this would constitute matter of defence, which must come from the defendant.

7. The objection -that the declaration does not conclude “ against the form of the statute, &c.,” — if, indeed, it be an objection in .a case like this, which it is not necessary now to consider of, could only be taken advantage of by special demurrer, which has not been done upon the record.

The judgment of the Circuit Court will be reverséd, and the case be remanded to be further proceeded with.  