10 F. 888 -

888

ties due opportunity to be heard. On the present motion the court must act from the evidenctJ before it, which, u true, l:lhow.s 1Io fraudulent judgment. Motion sustained. MoCJURY, C. J., concurs.

GOLDMAN 'V. CONWAY COUNTY.

((}ircuit Court, E. D. Arkansa.. October Term; 1881 )
COUNTY INDEBTEDNEBS- WHEN STATUTE OF LIMITATIONS BEaINS TO RUN.

Where a county may be sued on its ordinar,v warrants and compelled by mandamus to levy a tax to pay them, the statute of limitations begins to run against such warrants from the date of their issue.

The plaintiffs' cause of action is ordinary county warrants, in the form prescribed by statute, issued before the thirtieth day of October, 1874, and presented to the county treasurer for payment, and by him indorsed "not paid for want of funds," more than five years before the commencement of this suit. The statute of limitations of this state declares that "actions on promissory notes and other instruments in writing," and all actions not specifically named in the act, shall be barred in five years after the cause of action accrued. Gantt's Digest, §§ 4125, 4129. The county pleaded the statute of limitations in bar of the action. The plaintiffs demurred to the plea. Clark &: Williams, for plaintiffs. John Fletcher, for defendant. CALDWELL, D. J. It is well settled that counties may plead the statute of limitations to actions founded on contracts and unliquidated demands. Dillon, Mun. Corp. § 533; Baker v. Johnson Co. 33 Iowa, 151. Such a plea may be interposed by a city to an action upon its notes. De Cordova v. Galveston, 4 Tex. 470. And in Louisiana it is held to be a good plea to an action on warrants issued by the police jury of the parish, which are analogous to, if not identical with, our county warrants. Perry v. Parish of Vermilion, 21 La. Ann. 645. And the statute begins to run against interest coupons attached to negotiable bonds, issued by municipal corporations, from the time they mature, although they remain attached to the bond which represents the principal debt. Amy v. Dubuque, 95 U. S. 470.

GOLDMAN

11.

CONWAY COUNTY.

889

In this state counties are declared to be bodies corporate, with power to contract, and sue and be sued: This carries with it the right, when sued, to interpose every defence, legal and equitable, which it may have, including the statute of limitations. Not only are counties and all municipal corporations in this state within the protection afforded by the statute of limitations, but the state as well. An act passed in 1855 and still in force declares that U lapse of time a,nd statutes of limitations shall apply in suits against the state in like manner as suits against individuals, and may be pleaded and relied on with like effect." Section 5677, Gantt's Digest. This provision clearly indicates a state policy favorable to statutes of repose. It is not seriously contested that a county may avail itself of this defence generally, but it is said not to be applicable to this class of paper. The force of this argument depends on the legal characteristics of these warrants under the laws of the state where issued. Where a county is not liable to be sued on such warrants, and cannot be coerced to levy a tax for their payment, the statute probably would not run against them; and the cases of Justices v. Orr, 12 Ga. 137, and Ca,rroll v. Board of Police, 28 Miss. 38, decide this and no more. But it is the settled law of this court that suit may be maintained on the class of warrants here sued on, and that under section 10 of article 16 of the constitution of 1874 the county court may by manrlmnu,s be compelled to levy a tax, not to exceed the limit prescribed by that section, to pay a. judgment recovered thereon. Shirk v. Pulaski County, 4 Dill. 209, and note. It is aho settled that the orders of allowance, in pursuance of whi('h such warrants are issued, have not the force of judicial judgments which estop or conclude the county, and that every holder of such paper takes it subject to all defences the county would have against the original payee. ld. They are prima facie evidence of indebtedness, upon which suit may be maintained, and the county coerced to levy a tax to pay them; and, where this is the law, they stand on the same footing, so far as relates to the statute of limitations, as bonds, coupons, or other demands which confessedly fall within the statute. The warrants are due and payable on the day they are issued, and the statute runs from that date. If construed to be payable on demand, they would be payable at once, and the statute would run from their delivery. Palmer v. Palmer, 36 Mich. 487. When they were presented to the treasurer and indorsed by him, as then requiren

890

REPORTER.

by law, the statute run from. that date. It is no answer to the plea to say the treasury of the county never contained funds to pay the warrants. They were a legal tender in payment of taxes, and it was open to the plaintiff, by appropriate judicial proceedings, to compel funds to be placed in the treasury for their payment, and the right of action accrued when the warrants were issued, and not when there were furids in the treasury for their payment. Where a contract was made for work, payable out of a public fund, it was held tho statute began to run from the time the work was completed, although the fund was not then raised. Emery v. Day, 1 Crompton, M. & R. Ex.
245.

':rhe statute of limitations is one of repose. It is not based on presumption of payment, but on the impolicy of permitting state demands and transactions long past to be made the subject of judiCial inquiry; and hence, neither indisposition nor inability of the debtor to pay is an answer to the plea. There is the same reason for giving counties the benefit of it as individuals. It is not always true that outstanding warrants have never been paid by the county, or that they ought to be paid. It not unfrequently occurs that they are issued illegally and without consideration, and the records of this court disclose the fact that warrants once redeemed were afterwards frauduleIj.tly withdrawn and put in circulation. The county is as likely to be deprived of the evidence of such facts by lapse of time as an individual, and for that reason should have the same protection from the statute. The form of warrant prescribed by statute contains no seal. There is no statute in terms requiring the clerk to affix the county seal to such instruments, and it is not affixed to the warrants sued on; so that the question of the period required to bar sealed instruments does not arise in this case. The question whether warrants are valid without a seal was not argued and is not decided. Demurrer overruled.

CISSELL V. PULASKI OOUNTY.

8\n

CISSELL

v.

PULASKI COUNTY.

(Olrcult Oourt, E. D. Arkan8as. October Term, 1881.)
1 COUNTY WARRANTS-CANCELLATION-NoTICE REQUIRED.

The notice required to be given of the order of the county court calling in warrants for cancellation and reissue, under a statute, in Arkansas, is for the benefit of the warrant-holders; and the county, which is suitor in the proceeding, cannot object that legal notice of such call was not given.

2.

NOTICE-PUBLICATION, HOW PROVED-AFFIDAVIT.

The affidavit, to prove the publication of a legal notice in judicial proceedings, must show that the paper in which the publication was made is one authorized to publish such notices, and that the affiant sustains the relation to the paper required by the statute to authorize him to make the a1fidlwit.
3. SAME-CONSTRUCTIVE SERVICE-FACTS MUST AFFIRMATIVELY ApPEAR;

When it is sought to conclude a party by constructive service, by publication, every fact necessary to the exercise of jurisdiction, based on such service, must affirmatively appear in the mode prescribed by the statute.
4. SAME-DEFECTIVE PROOF CANNO'f BE SUPPLIED BY PAROl, TESTIMONY. If the proof of publication contained in the record is defective, it is not

competent for another court to receive parol testimony to supply the omission.
SAME-RECORD EvIDENCE OF NOTICE-PRESUMPTIONS.

The recital of due notice in the record of a proceeding, under special statutory authority, must be read in connection with that part of the record which gives the official evidence prescribed by statute. No presumption will be allowed that other or different evidence was produced; and, if the evidence in the record will not justify the recital, it will be disregarded.

A statute in Arkansas authorizes the county court at stated periods to call in all the outstanding warrants of the county "in order to redeem, cancel, reissue, or classify the same." An order for the call is required to be made by the county court, and notice of the time fixed for the presentation of warrants under the call must be given in a mode provided by the act, and all warrants not presented at or before that time are barred. The plaintiff sued on warrants of the defendant county reissued under a call in 1875. The county answered (1) that there was no sufficient notice of the call of 1875, and that the reissue of the warrants by the county court under the supposed call of that year was illegal and void; and (2) that a warrants in suit were not prevalid call was made in 1877, and sented under that call as required by law and the order of the county court, and were therefore barred. John McClure, for plaintiff. B. C. Bl'uwn, for defendant.