Robison v. Hawkins

Freeman,::J., delivered the opinion of the court. This is a petition for a mandamus against the Chairman of the County Court of Cannon county, to compel the issuance of a warrant for the sum of $21.50, on [451] a claim that had been allowed by an order of the court in favor of petitioner. It is not denied the county was so indebted, but the Chairman resists the claim for mandamus on the ground that some time before a judgment had been rendered against petitioner by the circuit court, for carrying a pistol, and costs of the case, amounting to perhaps $35. An execution issued on this judgment on which the sheriff returned nulla bona, whereupon the claim was certified to the county for payment, and was paid, and so he claims the right to reimburse the county out of this sum due from the county to plaintiff. The defense is in the nature of a set-off, and if there was nothing more in the case, would be a good defense. But the petitioner shows in his petition, and proves that he had, in fact, paid $20.90 of the costs included in the bill of costs, to witnesses and a clerk, and had shown his receipts to the sheriff when he went to him with the execution. This being so, the county paid the bill of costs, as said by the Referees, at its peril, and having paid to this extent a debt, which petitioner did not owe, but had paid, no right to receive reimbursement can exist. The fact the sheriff’s return did not show the facts, can make no difference in a case like this, nor can the party be compelled to pay his debt twice, because of his failure to file his receipts with the county court clerk. The Commission of Referees so report, reversing the judgment of the circuit court, and we affirm their judgment with costs of this and court below.