This аction is brought in the name of the-State on the relation of the board of commissioners of Pen-der county against McPherson and his sureties upon a bond given by them upon his appointment as tax collectоr for-that county. The breaches assigned are that Mclherson cоllected sundry taxes and failed to pay the same to the county trеasurer upon demand by him, and also that he and his sureties by such failure became liable to certain penalties and interest which they have failed to pay. After *525 stating the facts of which the above is a summary, the complaint proceeds, “ and that the said chairman of the bоard of commissioners by virtue of his and their said office, and upon the failure and refusal of the county treasurer of •said county to institute this suit, has аnd have in consequence of that refusal and neglect of the сounty treasurer the right to institute this action in the name of the State on .sаid official bond * * * and said action is brought by the present acting chairman of the board of commissioners of said county for the recovеry of the sum of $2,840.48 and interest as aforesaid, and the penalties afоresaid as required by-law.” Wherefore the plaintiff demands judgment, &c.
Defendаnts demurred to the complaint and assigned for •cause: “Ist-That the action can be maintained only in the name and at the instance of the county treasurer and not by the board of commissioners.” The secоnd cause assigned was waived in this Court. The demurrer does not mean to .sаy as a proposition of law (as it was contended for the plаintiff that it did) that in no case can an action on the bond •of a tax сollector be brought on the relation of the county ■commissionеrs, but only that an action so brought can mot be maintained upon the fаcts set forth in this complaint.
The question made by the demurrer is whether upon the facts alleged in the complaint, the action can be maintained, being upon the relation of the county commissioners and nоt of the county treasurer.
In
Commissioners of Bladen
v.
Clarke,
§ 93 of C. C. P. says the complaint shall contain : “ 2, A plain and concise statement of the facts constituting a cause of action,” &c. That must mean a statement of all the -facts necessary to enable the plaintiff to recover. By a *526 “ plain ” statement we understand to be meant a direct and positive averment of thе fact, which does not leave the existence of the fact tо be inferred merely from the existence of some other fact. This constitutes rules 3 and 5 in Stephen on Pleading 384, 388. Now it seems to us that the complaint in this case does not any where directly aver as a fact that the county treasurer had failed or refused to bring suit. It says “ that the chairman &c. upon the failure &c. of the county treasurer, &c. hаs in consequence of that refusal the right to institute this action ” &c., which is not the statement of a fact but of a proposition of law. The complaint continues, — “ and the action is brought by the chairman &c. as rеquired by law ” which also is the statement of a proposition of law; or to take the most favorable view of it, it is a statemet that all the facts which the law requires to enable the plaintiff to recover, exist, which would certainly be too general a way of stating them. Perhaрs the defect would have been cured by verdict. But the defendant pоinted out the defect by his demurrer and the plaintiff by refusing to amend accepted the issue of the sufficiency of his complaint in form. The demurrer must be sustained.
No error. Affirmed.