Lewis v. Lee County

73 Ala. 148 | Ala. | 1882

BBICKELL, C. J.

— There are cases which go so far as to maintain that the declarations or admissions of the principal, without restriction as to the time or circumstances under which they were made, are evidence against the surety. — -3 Phill. on Ev. (C. & IT. notes), 261. There are other cases affirming the proposition pressed in the argument of the counsel for the appellee, that when principal and surety are jointly sued on a joint or a joint and several obligation, any admission or declaration made by the principal, which is competent evidence against him, is also competent against the surety; for the reason, it is said, that as the suit is against several joint contractors or joint obligors, a recovery to the same extent must be had against all or none, unless one or more of the defendants interposes a personal defense, such as infancy, coverture, or bankruptcy. — Pendleton v. Pank of Kentucky, 1 T. B. Monroe (Ky.), 171; Amherst Bank v. Pool, 2 Metc. 541; Atlas Bank v. Brownville, 9 Rhode Island, 168. Without any limitation as to the nature of the action, approved text writers state that the mere naked admissions of the principal, not made in the course of any business, or as parts of any acts with which the surety is connected by his contract, can not be received as evidence to charge the surety. — 1 Greenl. on Ev. § 187; 2 Whart. on Ev. § 1212. This is the rule which has been recognized in this court as to the admissions or declarations of the principal, or his acts not in the transaction of business for which the surety is bound. — Bondurant v. Bank, 7 Ala. 830; Dumas v. Patterson, 9 Ala. 484. In the first of these cases the declarations of a sheriff in reference to the time at which an execution in his hands was to be paid, accompanied with evidence of the payment, were received to charge his sureties rvho were separately sued; the court holding that the declarations, having been made while the sheriff was acting officially, though not simultaneous, were parts of the res gestee, the payment'of the money. In the other case, the admissions of a sheriff that he had collected money on an execution, not made while acting officially, merely narrative of a past act, were held inadmissible against his sureties, when sued jointly with him. In Townsend v. Everett, 4 Ala. 607, the annual settlements of a county treasurer with the court of county commissioners, and the statement made by him to his successor in office of the amount of moneys remaining in his hands, were held competent evidence against his sureties. These were acts which he was bound by law to perform — they were official duties specially imposed upon him ; and fidelity in the performance of official duties the surety guaranteed. The court said: “It may be conceded that the acts or declarations of a principal which will be evidence against the surety, must be made or done in the performance of the duty for which the surety is responsible; but the concession will not avail the surety in this case, as that is literally the fact here.” These cases illustrate the rule as it has been settled in this State. The main inquiry is, as,is said by Mr. Gfreenleaf, whether the declarations or admissions of the principal were made during the transaction of the business for which the surety was bound ; if so, they are admissible against the surety. If otherwise; if not concomitant with any act for which the surety is bound ; if they are mere narrations or admissions of past transactions, they are mere hearsay, and not competent evidence against the surety, whether he is sued severally or jointly with the principal. The reason is well stated: “ The surety is considered as bound only for the actual conduct of the party, and not for whatever he might say he had done; and, therefore, is entitled to proof of his conduct by original evidence, where it can be had, excluding all declarations of the principal, made subsequent to the act to which they relate, and out of the course of his official duty.” 1 Greenl. on Ev. § 187.

In the case before u’s, we lay no particular stress upon the fact, 'that prior to the making of the declarations or admissions of Lewis, his term of office as county treasurer had expired. There remained 'the duty of stating his official account, and of delivering to his successor all tire money, books, papers and property of the county, which had come to.his possession, and his declarations or admissions accompanying either of these acts, and explanatory of them, would be competent original evidence against his sureties, though his official term had expired. The point of objection to the competency of the evidence of his declarations, as against his sureties, is, not that they were made after his term of office had expired, but that they were not made while he was doing any act, transacting any business, or performing any duty for which the surety was bound. They were subsequent in point of time to all official acts or duties to which they refer, and are simple admissions that in his official capacity he had received moneys of the county. As against himself they were competent original evidence. — Lewis v. Lee County, 66 Ala. 480. As to his sureties, they were mere hearsay, creating no inference or presumption of liability for which they were bound to answer. The circuit court erred in refusing the instructions requested, limiting to the principal the operation and effect of these admissions.

The relevancy of the evidence sought to be elicited by the several questions propounded to Lewis, while under examination as a witness, is not perceived. It is not the use of the money of the county, or the failure to keep it safely, or the place at which he kept it, or the having it on hand at the expiration of the official term, which are relied on as breaches of the official bond, but the failure to account for it legally and properly, or to .pay it over to his successor.

Whether the certificates or receipts, issued by the Governor under the authority of the act approved February 19, 1867, (Pamph. Acts, 1866-7, p. 657), or the obligations issued in pursuance of the act approved December 19, 1873, (Pamph. Acts, 1873, p. 40), were bills of credit, falling within the inhibition of the .Federal Constitution, or simple instruments binding the State to the' payment of money at a future day in satisfaction of debts it had incurred, operating rather than otherwise a mere change in the form, or in the evidence of such debts, or to be employed in borrowing money for public uses, can not in this case become a practical question. If they were bills of credit, having been by the State introduced into the circulating medium, the community having given them currency upon the pledge, that they should be received-in payment of all public dues, and should be redeemed, a moral obligation rested upon the State to receive and to redeem them. The obligation could, not be discharged without the agency of the officials employed in the collection and safe keeping of the public revenue. When these officials received them under the authority of law, from all liability they could absolve themselves by accounting for them in. specie. They can not absolve themselves by a controversy with the State as to the legality of the issue, after'to their own uses they have converted them. Cooley on Taxation, 500.

The duty of Lewis, the principal, on the termination of his official term, was to pay to his successor in office the public moneys he had received and had not disbursed according to law, and all such moneys as he had neglected to collect. These formed a.specific sum, to which the county was then justly entitled. The detention of it was wrongful, and for the detention the law gives interest in the nature of damages.— Cheshire v. Howland, 13 Gray, 324. In this State, interest according to the statutory rate is regarded as but just compensation for withholding the principal; and when the principal is ascertained to be due at a particular time, and without sufficient excuse remains unpaid, interest follows as an incident.— Whitworth v. Hart, 22 Ala. 343. Until there was a successor to Lewis, qualified, and authorized to receive the moneys of the county, there could be no payment of them, and interest would not accrue. Whatever of indefiniteness there may be in the evidence upon this point, as it is stated in the bill of exceptions, can hereafter be obviated.

The committee examining the books and papers of Lewis, as county treasurer, were not appointed in pursuance of the statute. — Code of 187(5, § 849. They were appointed by the court of county commissioners, not by the judge of probate. The purpose of their appointment was doubtless to obtain for the court information as to the condition of the finances of the county. When the report was received bj7 the court, they could have made it the basis of whatever action may have been deemed expedient for the public interests. But it could not become matter of evidence against any official, who did not assent to the truth of its statements. As to all others it is res inter alios aota. The same would be true, of a report of a committee appointed in pursuance of the statute by the judge of probate, to examine the books and vouchers of the county treasurer. Their office is performed, when they make the examination and report to the judge. The report is a mere medium through which information may be derived as to the condition of the office of the treasurer, and of the finances of the- county, dependent for its value upon the integrity, skill, industry, and accuracy of the committee. But with it the treasurer is-not connected, has not the opportunity of verifying, or of controverting its statements, unless he enter into a controversy, more or less unseemly, with the committee, which there is no arbiter to determine. So far as Lewis assented to the statements of the report, as against himself ■ the report was evidence. The assent was an individual, not an official act; and as against the sureties who had not assented to its truth, the report was 'not evidence.

There are several rulings of the circuit court not consistent with this opinion, and because of them the judgment must be reversed, and the cause remanded.