Ouachita County v. Tufts
43 Ark. 136
Ark.
1884
Check Treatment
Smith, J.

Tufts in 1883, presented to the Ouachita County Court his account for services rendered in certain criminal cases when he was County Clerk and Ex-Officio Clerk of the Circuit Court, some nine years before the exhibition of his claim. Upon a rejection of his demand, he appealed to the Circuit Court, where a jury being waived, the causo was tried before the Court upon an issue raised by the plea of the Statute of Limitations. And the finding and judgment were in favor of the claimant. The motion for a new trial insisted that this finding was without evidence to support it.

i.stat-XJ T E OF limit a - by EvideucoIt was settled by this court in Gaines v. Hot Spring County, 39 Ark. 262, that a County could plead the statute in bar of a demand against it. And when it is pleaded, the burden is on the plaintiff to show any suspension of the statute or the existence of any facts on which he relies to create an exception from the general rule. In other words the plaintiff must show both a cause of action and the commencement of legal proceedings within the period mentioned in the statute. Abbott’s Trial Evidence, 822-3; 2 Gr. Ev., Sec. 431; Taylor v. Spears, 6 Ark., 382; McNeil v. Garland, 27 Id., 343. Now the only evidence is, that the services were rendered prior to the Fall of 1874, when Tufts went out of office ; that he then made out a list of fees due him in unsettled cases; that in the Winter of 1875 the records of the clerk’s office were destroyed by fire and that this necessitated the finding of new indictments in every one of these cases then pending; and that Tufts considered his fees to be due aud payable by the County at that time. He does not know the final disposition of the cases, nor the character, nor the grade of the offences with which the parties were charged. No judgment is shown to have been rendered against the County for costs in any one of the cases.

Assuming for the purposes of this appeal that Tufts is correct in his theory that the County became liable to him when, after the fire, the old. prosecutions were dropped and new ones resorted to, no excuse is shown for not sooner preferring his claim.

The judgment is reversed and a new trial ordered.