1. There are several breaches of the bond sued on assigned in the complaint, some of which are too general, while others, relating to the illegal use or expenditure of the money of the county, and the failure to keep and disburse it according to law, are sufficiently certain and definite. The demurrer goes to the entire complaint, each assignment of a breach being specified as cause of demurrer. Some of the assignments being sufficient, the demurrer was properly overruled. — Williamson v. Wolf, 37 Ala. 298.
2. The complaint alleges that the bond, which is set forth therein, and is the foundation of the suit, was executed by the defendants. Under the statute, the bond must be received as evidence without proof of execution, unless the execution is denied by a verified plea. — Code, § 3036; Johnson v. Caffey, 59 Ala. 331.
3. The material question arises on the admission in evidence of two papers given by the county treasurer to the tax-collector, and on the ruling of the court in reference to the liability of the sureties on his official bond for the amounts of the same. One of these papers is in the following form: “I. O. U. four hundred and nineteen dollars, November 28, 1885. J. F. Tyler, C. T.” The other is for sixteen hundred dollars, similar in form, except as to date and amount. It appears from the evidence of the collector, that the treasurer collected some taxes as his agent, which he stated he had used in paying court expenses. The first paper was given for the amount of taxes so collected. The second was given for taxes collected by the collector, which he let the treasurer have to pay some claims against the county. The treasurer received these sums as so much of the county tax, to be accounted for in a settlement with the collector at the end of the month, and the papers were intended as receipts. It is first objected that the papers are the individual obligations of the treasurer, and that parol evidence is inadmissible to show that they were to have a different legal effect. The rule, that parol evidence can not be admitted to vary, explain or contradict a writing, is confined to the parties to the writing, and when it comes in *330question collaterally between one of the parties and others, . neither party is estopped to contradict or explain it; and as between the parties, it is admissible to show that a particular mode of payment was agreed on. — Venable v. Thompson, 11 Ala. 147; Murchie v. Cook, 1 Ala. 41.
4. It further appears that Hilliard, the judge of probate, who was requested by the treasurer to attend to his official duties for him, made two settlements with the collector, — one before, and one after the death of the treasurer, — and in one or the other of these settlements, he received these two papers from the collector, as evidencing the payments of so much of the county taxes to the treasurer. The evidence leaves in doubt in which settlement he took the papers. This was an inference to be drawn by the jury. If they were accepted in the settlement before the death of the treasurer, the transaction was within the scope of Hilliard’s authority as agent, and was binding on the treasurer. The instructions relating to this matter, requested by the defendant, were to the effect that the sureties were not liable for the amounts represented by the papers under any circumstances; and, in the light of the evidence, were properly refused. Furthermore, if the treasurer received the moneys in his official capacity, as county taxes, he and his sureties are estopped to deny that they are the moneys of the county, for the lawful disbursement of which he is responsible on his official bond, whatever may be the character of the papers given by him to the collector as representing the amounts so received. Perryman v. Greenville, 51 Ala. 507.
5. While the books and entries made by the treasurer, or his agent, are prima facie evidence against him, entries made by the agent after the termination of his agency by the death of the treasurer, are not binding on him or his sureties, and not admissible in evidence against them. The court erred in admitting in evidence, against the objections of the defendants, the entry shown to have been made by Hilliard after the death of the treasurer. The error was not cured by the instruction, that the defendants could relieve themselves from liability by explaining the entry. The effect was, to make such entry prima facie evidence against them, and fix on them the burden of explanation. If the accounts of the treasurer were so mingled in the different entries as to require separation, the entry after the death of the treasurer might have been used for this purpose; but the *331jury should have been instructed, that they could use it for this purpose alone, and not to regard it as evidence.
6. The tax-collector and Hilliard were competent witnesses to testify to transactions with the deceased treasurer. Garret v. Trabue, Davis & Co., 82 Ala. 227.
Reversed and remanded.
AI-generated responses must be verified and are not legal advice.
