62 Ga. 223 | Ga. | 1879
On the 15th day of September, 1873, a bill in equity was filed in the Houston superior court by the ordinary of that county against John R. Cook. Pending this suit, a board of commissioners of roads and revenues having been established for said county, they, as such commissioners, were made complainants instead of the ordinary. The object of the bill was to recover, in behalf of the county, numerous sums of money, amounting in the aggregate to $17,276.00, which the bill charges had been drawn by said Cook, while acting as sheriff of Houston county, from the treasury of said county, on false and fraudulent accounts. Cook held the office of sheriff from the 24th day of August, 1868, up to the 9th day of February, 1871. The payments by the county treasurer to him were very numerous, and at different times, extending through his term of office. The accounts were mostly for insolvent criminal costs, claimed as due to the sheriff and other officers, and the balance was for extra services and other services and expenses claimed to have been rendered and incurred. The larger portion of
The auditor (Nottingham) heard the cause, and made and filed his report in the clerk’s office within the time fixed by the order of reference, and he also served the parties with written notice as required by the order and within the time required.
No exceptions to the report were filed within the time limited by the order. But a few days after the expiration of the time, counsel for Cook filed exceptions in the clerk’s office. This was done without leave of the court. Nor was any application made to the court for leave to file exceptions, or for any extension of time for the purpose, at the ensuing term, or at any term thereafter, until the term at which the ease was tried, more than two years thereafter.'
Cook’s exceptions were prepared by Messrs. Grice & Davis, two of his counsel who were present during the
The final decree was made at the February adjourned terra, 1878’, before Judge Crisp, the successor of • Judge Hill. At this term the court sustained the motion of complainants, and dismissed the defendant’s exceptions on the ground that they had not been filed within the time limited by the order of reference, and the report of the auditor was approved and allowed by the court. At this same term the defendant moved to quash and disallow the report of Nottingham, “ master fro hae vice” on the ground, 1st, that there is no such ofiicer as a master fro hac vice; 2d, that the cause having been referred to Best as master, could not have been withdrawn and referred to another witho ut defendant’s consent; that the court had no jurisdiction to make this change of reference, and that the report of Nottingham was a nullity and should not be allowed. This motion was overruled by the court.. After the exceptions were dismissed and the report was allowed by the court, a decree was rendered by the chancellor without a verdict by a jury, on the facts as reported by the auditor and in accordance with the report, against Cook for $9,385.25.
To which defendant Cook excepted.
The right of trial by jury guaranteed by this provision of the constitution relates to the trial of issues of fact, not to the trial of issues of law. Issues of law are to be tried by the court. Our statute provides that “ the report of the master or auditor, when returned to court, shall be subject to exceptions for such time as the court may allow, and the exceptions so filed shall be the only issues of fact submitted to a jury, so far as the matters referred are concerned.” Code, §1203.
Of course a reasonable time would have to be allowed by the court for the parties to except. If either party desires to controvert any fact contained in the report, he can do so only by filing his exceptions thereto. Upon any issue of fact thus made, he is entitled to his trial by jury. If he makes no such issue, he thereby elects to stand upon the report as true so far as the matters of fact therein reported are concerned. And nothing is left to be done but for the court to pronounce upon the matters of law involved, or arising upon the facts as shown by the report.
Where the whole of the facts in litigation are referred to the auditor, and where the report also covers the entire facts, of the case, the chancellor enters the decree without the intervention of a jury. Code, §1206.
In the case before us, the entire facts were referred to the auditor, and his report covered the whole case; and there having been no exceptions legally filed, there were no issues of fact to be tried, and the chancellor properly entered the decree.
Sections 3097 and 3138 of the Code must be read and construed in connection with sections 1203 and 1506, above
Under these circumstances, though there were no written exceptions to the auditor’s report on file, we hold that the
We hold that the general rule is that four years after the accrual of the cause of action is the period of limitation within which a suit upon an account must be brought by a county, to recover money illegally drawn from its treasury on false accounts.
Yet we hold that the case at bar falls under an exception to this general rule, and that under the circumstances of this case the statute did not commence to run in favor of the sheriff, Cook, against the county during his continuance in the office of sheriff of that county, and that, as all of the payments were made to him during his continuance in
We cannot concur in this holding. There was no mutuality or alternate course of dealing between the sheriff and the county. The accounts were all on one side in favor of Cook against the county. The county never extended any credit to Cook. Simple payments by the county to Cook on his claims did not supply the necessary mutuality. In order to protect the older items of a running account against the bar of the statute on the ground that one a more of the items were contracted within the statutory period, the element of mutuality must exist; there must have been an alternate course of dealing, a credit extended to each party. Simple payments alone by the debtor to the creditor will not constitute the required mutuality. There must be credit extended to each party, so that each can be regarded as the creditor as well as the debtor of the other, their claims constituting sets-off against each other. Angell on Limitations, §149; Ingraham vs. Sherard, 17 Serg. & Rawle, 347; 17 California R., 344; Norton, vs. Larco, 30 Ib., 126.
Though it appears that the claims of Cook were false and fraudulent, yet it does not appear from the auditor’s report, or otherwise, that there was any concealment or artifice
Our ruling upon the statute of limitations in this case stands upon ground of public policy as well as upon the peculiar relation that the sheriff, as such, sustained towards the county while he was, by color of his office, making himself the creditor of the county, and thus getting possession of its funds.
The relation that subsists between the office-holder and the ’ public is peculiar. Though often analogized to- the relation of principal and agent among private persons, yet there are differences that separate the two very widely.
Among private persons, the principal can at all times keep watch over the conduct of his agent, and he has the stimulus of interest to induce him to do so. But the public has to depend upon its officials to protect its interests. It thinks and acts through its public servants. Indeed, it has no other direct means of either thought or action. The very best checks that the law can provide to protect the public against official corruption often prove ineffectual. Experience shows how difficult it is to detect official delinquency and bring the delinquent to account while he remains in his office.
In what I have now to add upon this subject, I speak for myself alone, and not for any other member of the court. ■It seems to me that our ruling on the statute of limitations in this case amounts to a limited and temporary application of the common law rule that the statute does not run against the government: limited, because it applies only to demands of the public against its own officials, and temporary, because the statute is suspended only during the continuance of the official relation.
Let us see if this ruling cannot stand upon the ground
The repealing statute was the act of 5th of March, 1856, pamph., p. 237. This act was intended as a general statute of limitations; and after prescribing limitations for the various causes of action, it provides in §38, “ That when by the provisions of this act, a private person would be barred of his rights, the state shall be barred of her rights under the same circumstances.”
It is a rule of construction that no general words in a statute of limitations will include the state; the state can only be bound by express words, or clear implication.
The same rule of construction would seem to require that no act of limitations affecting the public in express terms should be extended, to the injury of the public, beyond what the language of the act necessarily requires.
By this act of 1856, the state is tó be barred of its rights only “ under the same circumstances” where a private person would be barred. In other words, it is only in cases where “the same circumstances” — that is to say — the same surroundings and conditions exist in the case of the state as exist in the case of the private person, that the law of limitations applicable to the latter is by this statute made applicable to the former.
Of course exact identity of circumstances ought not to be required. All that is insisted on is, that the circumstances and surroundings in the case of tire state should so substantially correspond with the circumstances and surroundings of the case of the private person, as to make it appear reasonable that the legislature intended by the words used to put the two cases on the same footing..
I am aware'that- it has been questioned whether the common law doctrine which protects the -state from loss by lapse of time applies to counties at all. The reason of the rule is founded “ in that great public policy of preserving the public rights, revenues and property, from injury and loss by the negligence of public officers.” Angelí on Lim., section 36.
Judgment affirmed.