#### McCoy et al. vs. State use *of*Jackson Co.

The ciAnity comíá liavo authority ;jii 'u, is their duly to audit tl.o rcccnn-.-) *o'*'internal improvement cormnissiencT.; — i o m <\t moneys in the hands oí a n-SvA;; commissioner to be paid over (o hi ', suee-'ssor in office, and in default of sucli payment to direct suit to bo instituted on ilic ofilcial bond.

Tlio entries on the records of tho county court of the appearance of tlio commissioner mid the tilín;' of his account, import verity, and tlieir truth cannot beta-nuiixd into by tho circuit court upon l.hapbn of nul tiol record.

In suits on pona! bonds where breadle-'have bt on assigned, sweaiingihe jury to bn;-, irto the imih of tlio breaches is eipiivelent to swearing’ them to try the issues, : ■ not lía!do to objection.

Ko speck' demand for payment from a rel'rirg commissioner ¡ fter such pay ; -, has. l.ecu ordered by tho county court, ir. (>ero,>¡uyas preliuiiDri-ylo ihe in S.'s ■ vs, ,< of suit upon his official bond.

The proper mode of suing upon such bonds V; in ihe name of the Stale for the ■ ■■ of the counties entitled to the fund.

*Appeal from Jackson Circuit*Court.

lion. William C. Biwexs, Circuit Judge.

!J i't'LLT.'LLL & Y/ooBauFR, *Watr.im*& GaLLACÍIES, for the appellants.

C wearing tbe jury to try tho truth of tho breaches docs not include tho Mai of issues outside of the broaches and is irregular. *Dig.*618, *see.*40; *Ch.*127; 2 *Ark.*£02.

The record introduced in evidence exhibited no adjudication in tho character of a final judgment — a judgment alono imports verity and precludes enquiry. 1 *Cread. on Eo. see.*G20,

The adjudication by the county court not being a judgmoki, the record of its proceedings is no evidence, either of the appearance of McCoy or a settlement with him. 1 *Cread. Es. see.*527.

*309' "to y&í cu íbe bn;:;] should havo beca on Uro relation of Iba A . or oí 1,1o O oy. .MVr.b *va. V/riglU,*0 *Eí.iclif.*03.

'M ■ order to »sí-.y *:i\cr*,'c LM *i*ucccssor not being within the

J ’ i mbhorií)' of M ) comity court n, spaniel de ni an ti for pay-i el. a *¡*pr eliminar, to rift on the bead was neeesoAiy.

f'. b Ifeisrn^Jáo, M? the appellee.

Mho couaty court bud jurisdiction tuvd power.to make lU« ! Mila moni wifij. TJefMy. — MoQoy war. before them as appears ¡y Me record, which reports verity. *Borden vs. Glads*C *Eng.*

*'.*Chi.: *C*MirtMo M r: ,;r ;

delivered the opinion of the Oourt.

hi' -ms rn actLn of d -bt in die name of the Cíate, for the " r -1 f.i-brea ceu Ay, >; no an interna.] briproYeroont coini'nis-ebnv bond. The ecfMn was brought nyajiast íilicajah B. ib. CMy, the prlneip ■ S in ;Uo bend, and Jesso *VI.*Gtokcs rod * . .ri'.'i y’;lvy, two of If ¡ ¡'Ciadas. Mho bond bears date f/th of C> i 1 .-r, iff -od ’ /- Mhioned as prcn-cribad by the statute, f *d'g. Í 'll.*7, M *vc.*S:. The ele,fiar?.1 tier, -'db-yes > - ■';•• 1 special bro.n h-v of íbe bond, b:o came in substraen, and 'bf ry br.í Utile b f •!■ i.

If to substance of die breaches is, that llie tor;r» of oíleo of b oí 'ey,as internal i:.t prose neat coirnms.donor of Jackson county, d on the Ifni* bnyust, MMG, vlion ifonry /I. Miller, who Í ; -I boon elected as Mr. ¡ ..¡c ce war in the chine, riuiliilcd as sndi. h >i.-, *[■*on that (bey v,f; ¡y vra.. iadebt-'d to the f minty for niumoya vodi bod crane to hr; hands as each coiiinii.v.ioac;.' in the san», cf Mb'7 79. That MM-wardy on the SMb January, 1077, a *ya.3 had by the county court of mid county with '......Coy, v, Uh respect to said laoupya, and the sum aforesaid was focad duo from Iñm ¡o fbe, eoumty; and lie was ordered by the or-'r-l to nay the reine, over to Miller, las successor' in office,bet (huí; ho I;ad wholly frlird and r.egleclcd, Ibouyh a flea raqnesiod so to do, to pay the ramo or any part thereof, to Lullc:.'or to the c-nuidy, etc.

*310Thé defendant Stokes made default. Silvey interposed a demurrer to the declaration, which was overruled, and he made no further defence.

The causes of demurrer assigned were, 1st. That the declaration was, in form, in detinue, which could not be maintained on a bond: 2d. That there was no breach alleging the nonpayment of the money demanded, in the declaration, to the State.

The first cause assigned is not true in fact; the declaration is in debt, and not detinue. There is nothing in the second cause-The special breaches allege the non-payment of the amount found due from McCoy, on settlement, to his successor in office, or to the county; and the general breach avers the non-payment of the penalty of the bond sued on to the State.

The defendant McCoy interposed seven pleas, in substance as follows:

1. That he has not, and does not detain from the plaintiff said sum of $11,000 (the penalty of the bond) demanded, etc.

2. That he, on the 1st day of January, 1855, fully paid to the State the said sum of $11,000 in the bond mentioned with all interest due thereon.

3. That the said county court did not, on the 26th day of January, 1857, or thereafter, make and enter an order requiring said defendant to pay over to his said successor in office the sum of $5,647 79, as in the first and'second breaches alleged — ■ concluding *to the country.*

4. That he was not, on the 15th of August, 1856, indebted, as such commissioner, to the said county, for moneys which came to his hands as such, in the said sum of $5,647 79, or any part thereof, as alleged in the second breach.

5. That on the 26th of January, 1857, a settlement was not had by the said county court, of the accounts of the said defendant as such commissioner, or with the defendant of all sums of money which had come to his hands, as alleged in the first and second breaches — concluding *to the country.*

*3116. That there is no record of any such settlement, by the said county court, with said defendant, as alleged, etc.

7. That the said settlement alleged to have been had, by the county court, with said defendant, on the 26th January, 1857, was not made with him, nor was it made on a copy from the books of said defendant kept by him as such commissioner; nor did the said county court,, in such alleged settlement, audit any such account furnished by defendant; nor had defendant any notice of, or participation in such alleged settlement, in any way whatever; wherefore defendant avers that such alleged settlement is null and void for want of jurisdiction in said court) and not binding upon him, etc.

The plaintiff demurred to the third, *fifth*and *seventh*pleas, and the court sustained the demurrer.

The counsel forM’Coy, here,have not insisted in their argument that the court erred in sustaining the demurrer to these pleas.

The plaintiff took issue to the 6th plea, which was submitted to the court, and on inspection of the record, the court found the issue for the plaintiff.

On the trial of this issue the plaintiff read in evidence, from the records of the county court, entries showing that on the 26th of January, 1857, McCoy, as late internal improvement commissioner, appeared before the court, and filed his account current as such; a statement of his debits and credits, and of the balance of f5,647 79, due from him to the county. Also an order of the court directing Miller, his successor, to call on him to pay over all moneys etc. in his hands, and on his failure to do so, to employ counsel to institute suit against him (see copies of the entries in the case of *McCoy Ex parte*21 *Ark.)*

McCoy objected to the admission of these record entries on the grounds that they were void, etc.

The county court had jurisdiction, and it was its duty to audit the account presented by McCoy for settlement, and if found correct to approve it, and if not, to cause it to be corrected. See *Gould’s Dig. Ch.*101, Art. 3, *sec.*48. And it was proper for the court to order the moneys, etc., in his hands to be paid over to his successor in office, and that suit be brought against *312him on his failure, do,, *Ib. szc.*bb. Cuoh matters belong app; o-, priaícly to Lhe jurisdiction oí the county court.

Tho plaintiff 1 alio in evidence, asprut of ib o the account cüvs’í’uí Ciad by ¿Icüoy jo/ r.oiílonioní, in iba u.im.y court, anti to v, Mcu bis ñamo K.u signed, without proving No gencineneoe of hia signature.

It iras the province of the county court, when iho account vas presented for settlement, io ascertain whether it war presented by McCoy, or mads out by or for him, or v, ho tin r h¡;¡ signature thereto vos genuine or not. The record, slated that he appeared, and hied hie account current, and the account wan made part of the records oí ike cor: *l.*and'the fact of Lin any • arr-unce, or the íuVihouíicify oí iho account, we re not props? subjects of enquiry in iho ciividt court, on the trial of iho hrj.‘ to the plea of *nul U. I*record, or on the trial of t3:e oilier is.’lieu mads up in the cauro.

Issues were also taken to the let, bd and 4th pican, tiro ca, ie-rran submitted io a. jury, and ike plainii<Ts damages asseaued ct £Ghí-,I 5Ci.

On the tried, the, plaintiff read in evidence, against the objection of the do fend an to ills record of the seUlemenc oí LliCoy with the county court, the order directing the fluids, etc., in bin hands to be paid over to bin successor, etc., etc.

the Iiave above decided the questions made in relation to iho admissibility oí the record of the seUkuaent, etc., etc., at iho trial before the jury, in determining the points reserved on the trial before the court, 0.1 the issues to the plea of r.al tie! record — - the (lili plea.

The defendants appealed from the judgment rendered upon the verdict, and they insist, in addition to the points above decided, that the jury was not properly sv. ora.

Tiler judgment was rendered against Otokcs on default, and against £5¡Ivy for want of further defense upon Lis demurrer to the declaration being overruled, rad after the issues were made up between the plaintiff and ¿IcCoy, the. record states that they announcing themselves ready for trial, “ came a jury, to wit, *313cíe., who were duly cmpanneled and sworn. to well and indy try tlie truth oí the /readies, find rave.;;; the pl'daliTs d. mages, and a true veril kit give according' in the evi.L-'eeo.”

‘r And thereupon *[coalin''- a i.’ic r.*cord] the, issues of fact ¡«ride ry bctv.’i’en raid plainiiT ;;nd defend.mi, LloCoy, were submit-ied to the jury, who after hearing the evidence, etc., etc., returned into court the fdlov. dig verdict: “ V7e, the jury, do find

icr iiic plnmfiu, and that tlio breaches in the declare;!¡cu ore tree, and that the plaini'iif has sustained damages in the sum oí “ etc., etc.

In *íJU.'tc 'ime of Pelcrsnn vs. Gibson, et oh*Si *Ark.*id., we held liv'd' the correct practice (in suits upon penal bon !•) warn ‘,: . i i!’c jmy to enquire into the breaches, and assess the danmg.v as to the parly in default, as well as to try the issnoa rud a veso the damages as to the defendants who pie;'.led to the action.

In *JGcL'rii vs. Tmj/or,'! hhrj.Sñl,*she court held that: wear-in j ft:.: jury to try the, Irenes joined was neee.vaniy ecu!-, sleut to swearing them to enquire into the truth of the breather; and it would set'in that the rule Ought to work both way!--, and that í wearing them to enquire into, or try, the truth of the 1,readier, skeidd be regarded as equivalent to ew<-aring them to try the Arnes, etc.

It in insisted, however, for the appellants, that tyro of the picas of MoOo}', upon which issues were made up, were entirely outside of the matter of the breaches alleged. The picas rder-cc\I to are the *first*and *second.*The *fifnt*alleged that be did net *eLloin*Horn the plain Lift’ the amount of the penal!/ of the ¡mnd : The *second,*that be had paid it to the Ctate.

These jileas were certainly not outside of the general nreach of non-payment of the penalty of the bond; and they were not responsive to any other breach alleged.

If they were outside of all of the breadles, as submitted by the counsel for the appellants, they were outside of the *case*and the issues on them immaterial.

It is also insisted that the declaration is defective in not *314averring a special demand upon McCoy, by his successor in office, for the funds in his hands before suit.

It was not necessary to allege a special demand.

When the county court settled the account of McCoy as commissioner, ascertained the balance due from him to the count.y> and ordered it to be paid over to his successor, his right to hold the money as public bailee was terminated, it was his duty to pay it over to his successor at once, and no demand was necessary before suit. See *Byrd et al. vs. State use etc.,*15 *Ark. 175.*

Nor is the objection that the suit should have been brought for the use of McCoy’s successor in office well taken. The statute *(Gould’s Dig. Ch.*101. *Art.*3, *sec.*21,) required the bond of McCoy, as commissioner, to be executed to the State for the use of Jackson county, and the bond sued on was so executed, and it was proper to bring .the suit in the name of the State for the county. The money sued for belonged to the county, as a corporation, and the successor of McCoy was merely entitled to its custody and management as an officer or agent of the county. *The case of The State vs. Wright,*8 *Blackf.*65, cited by the counsel for appellant, was founded on a statute of Indiana, which required the suit to be brought on the relation of the successor in office.

The judgment must be affirmed.