Grayson v. Latham

STONE, 0. J. The motion to strike the bill o£ exceptions from the transcript must be overruled. Its beginning on the sixth page is in usual form, and its contents up to, and including the first half of page eighty-six, are such as are usually found in bills of exceptions. It is very unnecessarily long, containing in extenso all the testimony before the jury, when, as to a large part of it, no exception was reserved to any ruling made in regard to it. The conclusion of the bill of exceptions is less full than is generally shown, but we think the record, in its present shape, is sufficiently explicit to enable us to determine, conclusively, what questions were reserved during the trial. This is the proper office of a bill of exceptions, and the present transcript meets the requirement: — Code of 188(5, § 2758. The warrants declared on, issued and signed by the judge of probate as they were shown to have been, prima facie imported a liability on the county. — Com'rs Court v. Moore, 53 Ala. 25. The defense assumed several forms: First, that the warrants were issued in recognition of debts on the county, contracted in the purchase of corn during the war, for the maintenance of the families of soldiers who were serving, or were disabled, or had lost their lives in the Confederate armies. If this was satisfactorily shown to the jury, either as to one or both of the warrants it was, to the extent proved, a defense to the action. — Speed v. Cocke, 57 Ala. 209, and authorities cited. On the other hand, if the debt was for corn, purchased and used for the support of the indigent, and not in promotion of the Confederate government while the conflict was raging, then the consideration was lawful, and the other conditions co-existing, the warrants are evidence of a liability on the county. — Henry v. Cohen, 66 Ala. 382. Another phase of this question. There is some testimony tending to show that Davis made a contract for the purchase of corn during the war, to be paid for in Confederate money, the corn to be distributed among the families of Confederate soldiers, and that some of this corn remained unpaid for, uncalled for, and undelivered at the cessation of hostilities. That after the surrender, an arrangement was agreed on by which Pickens county became the purchaser of this corn, and contracted to pay Robinson for it at a different price, and in good money, and that it actually received and distributed the corn among its indigent poor, under this second con [550] tract. This is claimed to have been the consideration of the smaller of the two warrants, and that it was made payable to Davis, to distinguish it from the larger purchase, although, all the while, it was the property of the Nobinson estate. If this be the true history and version of the transaction for which the smaller warrant was issued, there was nothing illegal in its consideration, and it fastened a liability on the county. Any taint of illegality in the original, executory purchase would thereby have become purged, by the second executed contract. As to this part of the claim, the true inquiry is, whether the relation of debtor and creditor between Davis and Nobinson was abandoned, and a new agreement, on terms somewhat varied, entered into, by which Pickens county became debtor directly to Nobinson. _ Upon the question we have been discussing, the plaintiff made a prima facia case when he produced and proved his warrants, showed they had been registered, proved that in the receipt and disbursement of county funds, the time had arrived for their payment, according to their place on the registry, and that payment had been demanded and refused. Or, if payment urns not shown to have been demanded, by proving that demand would have been unnecessary. Making this prima facie case, if made, the burden would then be shifted to defendants to overturn the presumption of liability. If the testimony produced a reasonable conviction on the minds of the jury that the corn was purchased, procured and distributed among the families of Confederate soldiers while hostilities continued, that is a defense to the action. It is shown that the court-house of Pickens county was burned in 1876, and with it, among other things, the records of the court of county commissioners. It was attempted to be shown in defense that no order of the court of county commissioners had ever been made, authorizing the issue of the warrants which are the subject of the present suit. The burden was on the defendants to show that there was no such order. The record being destroyed, it could be shown by oral proof. — Smith v. West. 64 Ala. 34; Derrett v. Alexander, 25 Ala. 265; 1 Greenl. Ev., § 509. If there was an order of the court allowing the claims, and ordering warrants to be issued, this is enough. Hence, it would not avail defendants if they could show that no prior order had been granted, authorizing the purchase of the corn. If the claim was audited by the court and allowed, even if no prior order had been passed directing the purchase, the war [551] rants coulcl not be assailed for want of authority to issue them. To vacate them on the ground of unauthorized issue, it must be shown that the court of county commissioners had not allowed the claims — had not authorized the issue of the warrants. The questions discussed above were subjects of oral testimony.' Any facts pertinent to any of the inquiries, of which witnesses had personal knowledge, were competent evidence. This would include proof of time and place- when, and the person or persons by whom the contract or contracts of purchase were made; when, how, and under what authority the delivery and distribution were effected; whether paid for in whole or in part; and if paid for in wliat currency; whether or not the claim or claims were audited and allowed by the court of county commissioners, and orders made for the issue of warrants; whether or not the warrants were registered, and when; whether or not all claims of older registration had been paid, and when the time arrived for demanding payment of these warrants, in the order of their registration; whether or not demand of payment had been made, and if not proved, whether or not an order had been made refusing payment, and thereby demand would have been rendered fruitless and, possibly many other inquiries of pertinent facts, which may arise in the trial of the case. As a rule, however, only facts can be given in evidence. On the other hand, hearsay testimony, or what witnesses have gathered or learned in the community, is not competent testimony on any issue presented in this case. All such testimony when objected to, ought to have been excluded. We need not particularize all the rulings which fall within this class. It should be rejected on another trial. The present suit was commenced in January, 1882. The court of county commissioners adopted the resolution, instructing the county treasurer not to pay the warrants issued on corn claims in July, 1875. There is no evidence in the record that Eobinson’s administrator had notice of the adoption of this resolution. There was proof that the claims here sued on, as entered in the registry of claims against the county, were reached and passed, either in July, 1876, or in May, 1877. Either of these dates was less than six years before this suit was instituted. We hold that the present claims were not due and demandable until they were reached in the regular order on the registration book. — Code of 1876, § 845; Caldwell v. [552] Guinn, 54 Ala. 64. We hold further, that the limitation to a suit on these claims is six years from the date of the right to sue; and if they were not reached in the order of their registration until July, 1876, or May, 1877, they are not barred by the statute of limitations. Charge No. 3, given at the instance of defendants, is erroneous, in that it misplaces the burden of proof of the order of court, on which the warrants were issued. It was not, however, excepted to separately. Charge No. 5, given for defendants, is faulty for two reasons, as shown above. Charge 6 may be correct, but the time from which the limitation commenced to run is the date when the treasurer, having funds for the purpose, failed to apply them to those claims, after they were reached in the order of their registration. We feel it our duty to make a special order in reference to costs in this case. It is, however, the only means within ■ our power of protecting the appellees against what would be an oppression. The two faulty transcripts heretofore rejected by us will not be taxed against the appellees, as costs of appeal to be paid by them. If they are paid for, it is not right the appellees should be taxed with the burden. And the bill of exceptions is more than twice the length it need have been. Reversed and remanded.