
    Blackman Coleman vs. John Smith, chairman of the county court of Rutherford.
    In Error.
    Tlie record must show that the requisite number of justices of the peace constituted the court in the transaction of all county business.
    An appropriation of public monej by the county court, to the use of an individual, is one of those cases-where, by statutory provision, a specified number of justices are required to be upon the bench.
    
      Quere — Whether county courts have the power to make appropriations of public money, for books and stationary, furnished by the clerks'?
    At the April sessions, 1824, of the county court of Rutherford, Blackman Coleman resigned the appointment of clerk thereof. At the same term of the- court, commissioners were appointed to examine and report upon the claims of Coleman, for books and stationary furnished for the use of said court; who reported the sum of four hundred and twenty-nine dollars and fifty cents, as due to Coleman, upon an account rendered. The court entered up an order, directing the county trustee to pay over that amount to Coleman.
    At a succeeding term of said court, a motion was made on behalf of the chairman thereof, to rescind the order making the appropriation, on the ground, that the order was irregularly made — the record of the former term not showing that a competent number of justices of the peace were upon the bench when the order, making the appropriation, was made. Coleman introduced witnesses, and offered to prove, that at the time of entering up the order of appropriation, a competent court, to transact county business, were present; and moved the court to amend the record of the previous term, nunc pro tunc, so as to show that fact. The court excluded the evidence, overruled the motion to amend the record, ánd rescinded the order of appropriation.
    Coleman removed the cause by certiorari into the circuit court, where, upon argument, the circuit court dismissed the certiorari; from which opinion an appeal is prosecuted to this court.
    
      Anderson, for the plaintiff in error,
    -cited and relied in argument upon Peck's Rep. 159, to show that the county court at its subsequent term, had no power to change or modify a judgment or order of a preceding term. But if it were conceded, that the court might, in general, exercise a revising power over its own proceedings of a former term, yet it was urged, that in the case before the court, the order of appropriation gave to the transaction the characteristics of a contract, and created in favor of Coleman a vested right, of which he could not be divested without his consent.
    Barrow, for defendant,
    argued that clerks are not entitled to remuneration for books and stationary, furnished and used in their offices — for which were cited the acts of 1777, ch. I, sec. 2; 1794, ch. 1, sec. 2 and sec. 50; 1801, ch. 6, sec. 42; 1805, ch. 2, sec. 7. But that if the county court were authorized to make appropriations for that purpose, twelve, or a majority of the justices of the county, should constitute the court, when such appropriations were made; and that to attach jurisdiction, that fact must appear upon the record ; which cannot be added to, or diminished by parol proof. That fact not appearing upon the record, the order in favor of Coleman was wholly void;-and that the rescinding order of the succeeding term of the court, was an act of supererogation — and cited the act of 1796, ch. 7, sec. 1; 1817, ch. 48, sec. 2 and 6; 1 Ten. Rep. 53, Cook's Rep. 267.
    Anderson, in reply,
    contended that the record was amendable at the succeeding term of the court; and relied upon 1 Tidd's Practice 651, and 2 Tidd 862.
    But if not amendable in the case at bar, it would be presumed that a competent court at all times presided; that the statutes were directory to the justices, and therefore that fact need not appear upon the record. (Peck's Rep,. 44, 4 Haywood 60.)
   Peck, J.

delivered the opinion of tbe court. On the au~ thority of a series of adjudged cases in this state, to which there has been no dissenting opinion, so far as the cases have been examined, or are recollected: the court again determine, that in all cases where a specified number, or portion, of justices of the peace are required to be present, for any given purpose, the record should show, that such number constituted the court, otherwise any order or judgment of the court will be void.

The case before the court, was an appropriation of public money, to the use of an individual; and is one of those cases, where, by statutory provision, a specified number of justices are required tobe upon the bench. That a competent number were present, is not shown by the record; the order is, therefore, a nullity. It was void without the rescinding order; which, supposing it could be made ata subsequent term, was wholly useless.

We do not decide whether the county court have the power to make appropriations of public money, independently of any authority, given in express terms by the legislature, for books and stationary furnished by a clerk, for the use of the court, and which may be necessary to enable him to perform his official duties — that question is not raised by the record.

Judgment affirmed.  