MCNEILL v. SOMERS. clerk, when exercising the function of collecting the taxes on the list delivered to him while he was sheriff. We do not so interpret the law, nor, in our opinion, does the prolonged authority, given by statute, to proceed in the collection of taxes for which he is accountable, after the expiration of the term of office, constitute an "office or place of trust or profit" according to the true meaning of those words. The office of sheriff was then filled, or about to be filled, by a newly elected successor, and the relator's term had expired. He was no longer "in office" nor did he occupy a "place of trust or profit," but was simply engaged in completing an unfinished duty, which survived the termination of the office before held. The continued right to coerce payment of unpaid taxes, after, as before the determination of the office, may be, and indeed is, the correlative of the obligation to account for what is on the tax list, that is, of an official duty, but it remains detached from the office to which it was incident, a separated function, but it is not itself an office or place of trust or profit. There can be but one incumbent of a single office, and the one term being ended, the other is filled by a successor. The distinction is between the office, and the prolonging of the exercise of one of its functions after its determination for all other purposes. Thus the sureties on the sheriff's bond are allowed, in case of his death during the time appointed for collection, to proceed to collect, and are for this purpose invested with the same powers and means for coercing payment. Acts of 1885, ch. 177, §55. Numerous enactments, indeed they are common at every session of the General Assembly, extend the time and prolong the power to collect arrears from delinquent tax-payers for several years, and this right has been conferred upon an administrator of a deceased sheriff, and the validity of the act sustained, in Morton v. Ashbee, 1 Jones, 312. See also MCNEILL v. SOMERS. Jones v. Arrington, 91 N. C., 125, where the subject is fully discussed. Now, in these cases, will it be seriously contended that the sureties or the personal representative, when exercising the bestowed function of collecting, are in an office or place of trust or profit? So, where the sheriff shall go out of office before executing a deed conveying property sold under execution, he may still make it. But this retained power does not make him an officer. So in numerous other cases of extended authority to exercise some official function after the termination of the office,-that is, to discharge some assumed but uncompleted duty. What is meant by "places of trust or profit" in the Constitution, is considered in Doyle v. Raleigh, 89 N. C., 133; and we do not propose to add to what is there said. The incompatibility of the duties appertaining to the office of clerk and that of tax collecting, is urged in the well considered brief prepared by counsel for the defendant. But conflicts, if such they may be called, of this kind, are not uncommon, and hence deputies are allowed to aid in the performance of ministerial duties merely. But this does not make the functions so incompatible as to obstruct the entry into office, as was held In the matter of Martin, Appendix Wins. Rep., 153.. There is no error. Court of Wilkes. No error. This will be certified to the Superior Affirmed. JACKSON v. MCLEAN. ALEXANDER JACKSON v. JOHN A. MCLEAN. Arbitration and Award-Amendment-Recitals in Judgments. 1. Where an agreement to submit the matters in controversy in a pending action is made out of Court, and no order of Court is made to make the award when filed a rule of Court, the Court has no power to enter a judgment on the award, but the remedy is by a new action on the award. 2. An amendment which introduces a cause of action which arose after the action was begun cannot be permitted. So where a submission to arbitration of the matters in controversy in a pending action was made by an agreement in pais, the plaintiff cannot amend his complaint so as to declare on the award which has been filed in his favor. 3. The recitals in a final judgment cannot change the force and effect of an order made in a previous stage of the action. (Lusk v. Clayton. 70 N. C., 184; Simpson v. McBee, 3 Dev., 532; Gudger v. Baird, 66 N. C., 438; Moore v. Austin, 85 N. C., 179; Metcalf v. Guthrie, 94 N. C., 447; cited and approved). CIVIL ACTION, heard before Boykin, Judge, at January Term, 1886, of ROBESON Superior Court. This action was brought at the Spring Term, 1883, of the Superior Court of the county of Robeson, to recover the possession of the personal property mentioned and described in the complaint, the plaintiff availing himself of the provisional remedy of claim and delivery, at the time the summons issued. At the appearance Term of the Court, the complaint and answer were filed. The case was afterwards continued from term to term, until at the Fall Term, 1885, an entry appeared on the record in these words: "By agreement of parties, referred to J. A. McAllister and L. T. Everett to act as arbitrators." But pending the action, and before the last mentioned Term, on the 11th day of June, 1884, the plaintiff and the JACKSON v. MCLEAN. defendant, and the defendants in sundry other actions wherein the present plaintiff was plaintiff, agreed inter partes in writing, to and with each other, to submit all and all manner of actions, suits, controversies, claims and demands whatsoever, now pending, existing or held by and between the said parties in the Superior Court of Richmond and Robeson counties, to L. T. Everett, of Laurinburg, N. C., and J. A. McAllister, of Lumberton, N. C., as arbitrators, who shall arbitrate, award, order, judge and determine of and concerning the same; and we do mutually covenant and agree to and with each other, that the said award to be made by the said arbitrators, shall be final, and in all things by us be well and faithfully kept, performed and observed; that if the said arbitrators shall disagree, they have power to call in an umpire who may act with them and decide any questions, aided by the vote of one of the arbitrators, upon which they may be divided." Pending this reference, by consent of the parties, and before the referees named, F. W. Kerchner, Robert Calder and William Calder became parties defendant in this action, and filed before the referees or arbitrators an answer to the complaint, to which the plaintiff made reply, and they were made parties to and signed the agreement to arbitrate as above mentioned. In the action of the present plaintiff against McLean & Leach, pending in the same Court, and embraced by the agreement to arbitrate, at Spring Term, 1885, this entry appeared: "Under arbitration and award." At the next subsequent August Term, this entry appeared: "Continued under former order." At the next subsequent Fall Term, this entry appeared: "Notify arbitrators to proceed—continued under former orders." The arbitrators named in the submission, made their award on 2d December, 1885, and immediately filed the original thereof, with the agreement to refer, in the clerk's office, JACKSON v. MCLEAN. in the papers constituting the record of the suits which were pending and referred in the Superior Court of Robeson county, and also filed immediately a duplicate original of said award and agreement, in the clerk's office, in the papers constituting the records of the suits referred which were pending in the Superior Court of the county of Richmond. The material part of the award concluded as follows: "The arbitrators aforesaid, do hereby award and adjudge that the plaintiff, Alex. Jackson, do recover of the defendants, Kerchner & Calder Bros., the sum of fifteen hundred dollars, with interest thereon from the 1st day of November, 1882, until paid, together with the cost in all the actions pending between the said plaintiff and defendant in Richmond and Robeson, and the costs of this arbitration." It was admitted that the agreement to refer the matter in litigation between the parties to the various suits was made by them out of Court. Plaintiff moved for judgment in accordance with report of the arbitrators. The defendants resisted the motion for judgment upon the award mentioned, mainly upon the ground that it was not made under or in pursuance of any order of reference of the Court, but was made under an agreement to arbitrate and settle sundry matters in dispute and in litigation, embraced by numerous actions in Court between the present plaintiff and numerous different defendants in the actions referred to, which agreement was made out of and not with the sanction of the Court. The Court gave judgment, of which the following is a copy: "This cause coming on to be heard, and it appearing to the Court, that the award made by the arbitrators heretofore appointed in the above cause by this Court, was by the consent and agreement of the parties, and it further appearing that the above named defendants, Kerchner & Calder Bros., have |