'1JNl'Bfi RAm· t. BROWN.
(OfrcwU OOW'C, E. D. Mf.880'Wl'£, E. D. February 28, 1SllO.)
L Co11l'lTY WARRANTS-LIMITATION 0 ... ACTION-PLEADING STATUTB. Under Rev. St. Mo. 18l:l9, § 8195, providing that county warrants not presented within 51ears, or being presented, within that time, and protested for want of funds, an not presented again within 5 years after funds shall have been set apart for payment thereof, shall be barred, an information showing that warrants were dUly issued and presented within that time, and that they have notsinee.been paid, is good on demurrer, though more than 5 years have elapsed since their pre.. entation, as the appropriation of money for their payment, and non-presentation within 5 years thereafter, should be shown by plea. ..
&xB-MA'ND.uroS TO COMPEL PAYMENT.
On for a writ of mandamiuB to compel the payment of county 'Wal'rants, an information showing that the relator has valid warrants against the general funds of the county, and that the treasurer holds funds. which appear to be applicable to their payment, is suftlcient to require the treasurer to show cause Wh7 such funds should not be 80 applied. .
Equity. On application for writ of mandamm. The controversy in this case arises in the following manner: On the 15th of March, 1879, the county court of Knox county, Mo., caused two warrants to be drawn ·on the county treasurer, in favor of the relator, for the sum of $3,258.15 and $6,764.44, respectively. These warrants were issued in obedience to peremptory writs of mandamm, obtained in this court, commanding said c011nty court tocause such warrants to be drawn on the general funds of the county, and to be de-livered to the relator, in payment of judgments that he had theretofore obtained in this court on certain county bonds. Warrants were directed to be thus dl'awn on the county treasurer in lieu of a tax levy being ordered, for the reason that the bonds in question had been issued under a statute, which did not auihorize a special tax levy to pay the same in excess of 1-20 of 1 per cent. annually, as is more fully explained in the case of U. S. v.Countyof Olark,96U. S. 211, and in County Court v. U. S., 109 U. S. 229,3 Sup. Ct. Rep. 131. The information in this proceeding shows that the warrants so drawn were presented to the county treasurer for payment on the 18th day of March, 1879, and that payment was refused for want of funds with which to pay them, and that no part thereof has since been paid. On the 26th uayof December, 1889, there was paid to Joel Brown, the present treasurer of Knox county, the sum of $2,128 in satisfaction of a judgment which the county had theretofore obtained against the sureties on the bond of a former county clerk for a violation of his official duties. The damages assessed in such suit, and for which judgment was rendered, appear to have been the amount of certain fees earned by the county clerk, for which he had failed to account as required by law. After the payment of. such judgment, the relator herein presented the aforesaid warrants,· and demanded of the eQunty treasurer the sum of '2,128 in part satisfaction thereof. The demand was refused, whereupon the relator applied for and obtained a rule upon the county treasurer to show cause why he should not be v.41F.no.9-31
compelled to apply the sum of $2,128, realized as aforesaid, towards relator's warra.ntcl. The a motion, termed a'" motion to set .aside the!order or rule to show cause," alleging as a reason therefor (1) that the warrants are barred by the statute of limitations ofthis state; and (2): that the relator does not show any lawful claim to the fund in question, or to any part of the same. Thos. K. Skinker;.' for .relator. James Carr, for resllondent·
.THAYER,J.,(ajter'"w,iingthejactaaaabove.) The motion that has been filed by the respondentia, in effect, a demurrer to the and will be so treated. . . , 1.. The court is of the opinion that the point made that the warrantcl melltioned in the information areban-ed by limitation is untenable, and sh.ould be overrule!}; the purposes ot: this decision, that advantage may be taken of the statute. of limitation by demurrer, or motion in the nature of a demurrer, and conceding, further, that the statute may be invoked as adefenstlto this proceeding, precisely as if it was a sUit,against the county ,on the warrants, which it clearly is not, still., .on the showing made by the ,information, thecouil't cannot say that the warrants are barred. 8ection3195. Rev. St. Mo. 1889, in relation to county warrants; provides, .that "Jwhenever any such warrant, being delivered, shalL not be presented. to the county treaSUrer· for payment within five y.ears or, being presented within that time,and protested for want of funds to pay it, shall not be again presented foi', payinent withinfive:)'ears after funds shall have been set apart for·the payment.thereof,such warrant shall:be· barred," et0.·· In the case of Logan v... CoumiJy: eowrt, 63 Mo. 341, decideduby the supreme court of the state in 1876, a doubt. was expressed whether the generaJ. statute of limitations of 10 ,years,under then existing laws, would run against a county warrant until ;tberewas money in the treasury to pay it. Subsequently,in 1877 and 1679, the legisl.aturepassed the lawB ftom which section '3195 .is .compiled. Vide Sess.Laws Mo. 1877, p. 202,and section 5898, 2 Rev. St. Mo. 1879. The section above cited must therefore be regarded as the1aw prescribing the limitation applieshIe to1county warrants; and it from that section that, if a warrant is'presented for payment within tbe five years after it is issued, and is not paid for lack of funds, but isduly:.iregistered by. the county treasurer as required by section 3193, Rev. St.;Mo. 1889, the statute of limitation will not begin to run;against sucn' a: warrant until such time thereafter all; funds have been set apart :for iits payment, and· the bar or the statute will not be complete until the. expiration of five years. In the present ease; it appears that the:, warrants' 'Were presented and registered, but ""eta- not paid, for want of fund$, 'o:ll March 18,,1879, and thatthey have ndt since been paid. Ifthec0unty of Knox, more than five years before th6'filing of the present information, set apart funds to pay the warrantsin question; and they were not pr sented for five years thereafter, and are therefore barred, that matter to be brought to the attention of
the court by a proper plea. The information does not show conclusively that th'e warrar\.tsare baned;andthe statute of limitations cannot be invoked by demurrer except in those cases where the statute creates an absolute bar by 'mere lapse of time, witho\lt any exceptions or qualifications, and it conclusively appears from the face of the pleading that the bar is complete. Bank v. Winslow, 30 Fed. Rep. 488,and cases cited. 2. With respect to the other point urged, namely, that relator does not show any lawful claim to the fund, it is sufficient to say that the decision in U. S. v. County oj Clark, 96 U. S. 211, j)ettles, so far as this cqurt is concerned, that the relator is entitled to warrants ,against the general funds of the county, to discharge the judgment which he holds, and that he is not bound to rely solely on a fund created by a special tax levy of 1-20 of 1 per cent. annually. The supreme court of. the United States, in Coonty Court v. U. S., 109 U. S. 229, 3 Sup. Ct. Rep. 131" has likewise affirllled the order directing the issuance of the warrants involved in this very proceeding. It is useless, therefore, to cOntend here, that the general funds of the county are not applicable, under any circumstances, to the payment of the relator's judgment and warrants. The information, shows a fund in the respondent's hands that appears to be available for the payment of the warrants. Nothing to the trary is, shown by the information. It may be, however, that the fund in question cannot lawfully be used for that purpose, and that respondent is justified in refusing to so appropriate it. I can conceive of circumstancesthat would, no doubt, justify the repondent's alleged refusal to comply, with the demand made upon him. It may be that other outstanding warrants are entitled to priority of payment. But, if reasons exist why the respondent is not entitled to the fund, such reasons are peculiarly within the knowledge of the respondent, and it wOl.lld seem that he ought to disclose them in response to the rule to show cause. The relator, in my opinion, is not bound, as a conditionprecedent to obtaining such a rule, to ascertain every conceivable state of facts that would in law justify the respondent in refusing to comply with the demand made upon him, and to deny or negative the existence of every such state of facts by proper averments in' the information. That would be imposing a burden on the relator which the rules of pleading in civil proceedings evidently do not impose. I conclude, therefore, that the information discloses such a prima jacie right to the fund in controversy as will justify the court in compelling the respondent to answer the citation,and show cause why he withholds the fund. The motion to va-: cate the order to show cause is overruled, and 10 days' additional time is allowed the respondent to answer the citation.
. DE WI'n w. CmcAGo,B. & Q. Ry. Co. sCal·
. (C'lrcuU Cowrt,D. Massachusetts. January 29, 1890.)
Where a corporation executes a mortgage that the holders of a certain issue of bonds mayexchanf,e them for a new issue. 'at any time after the exeoudelJvering thereof, 'a court of equity will not enforoe aneichange after tion 14 years, in favor of purohasers of said bonds, not parties to the mortgage.
CoMPAlfIEB-BoNDS AlfD MORTGAa,ES-OFFER OJ!' EXCHANa,z-LAClIEB.
In Equity. Billfiled by JohnE. De Witt against the Chicago, Burlington & Quincy Railroad Company et al." to enforce an exchange' of bonds. Hutchins&: Wheeler, for c()tnp]ainant. Richard Olney and E. O. Perkins, for defendants. J.In 1872 the defendant corporation issued bonds to the of $7,026,000, payable on January 1, 1896, with interest at the rate of 7 per cent. per annum. The bonds were not secured by mortgage on the property of the railroad. On July 1, 1873, the defendant corporation executed a mortgage to the defendant trustees, whereby all its property was conveyed to the said trustees upon the trusts therein set forth. '1'he mortgage, among other provisions, contained the following clause: "It is exprMlillyunderstood and agreed that of said bonds the amount of twentymilliqns of. dollars thereof shall be set aside and held by the parties of part, and they and the proceeds thereof Shall be lIsed and appropriated exclusively and' only for the funding. paying off, and discharging the bonded and other indebtedness of 'the said first party, its said contingent liabilities hereinbefore mentioned. and to keep good said sinking fund; and that of said as may be required for. that twenty million of slIch bonds 80 Dlany purpose may be exchanged at par for saiq sev(ln (7) per cent. bonds of said first party, dated January.first, (1st,) A. D. eighteen hundred and seventy- , two. (1872,) and payable January first, (1st,) A. D. eigbteen hundred and ni!1ety-six, (1896.) heretofore issued and now outstanding; and the holders shall have the right to make' such exchange at the office of said first party in the city of Boston, at any, time after the execution and delivery thereof; allofwbicb said outstan.dlng· seyen per cent. bonds. when so ex· cMnged and tak(ln. up by said first party, shall be canceled 1)y said first party, ",ho tlhalJ caus.e to be on the fapeofthe same the date of such exchange. II In the present bill the plaintiff, who is the owner of nine $1,000 b\)ndsof the issul'! of 1872, asks: that the defendant corporation be or· dered to deliverto him nine of its 'bonds dated July 1, 1873, in exchange for his 1872 bonds, claiming that .under the.above provision in the mortgage it made a contract so to do. It appears that the railroad company, after making the mortgage of July 1, 1873, issued two printed circulars to the effect that the holders of the unsecured bonds had the opportunity to exchange them for the consolidated mortgage bonds. The last of the circulars was dated June 23,1879. In January, 1881, the finance committee of the company decided to make no further exchange, and all