Ouachita County v. Tufts

1. Statute of Limitations ; Pleaded by a County: Evidence. When a County pleads the Statute of Limitations to an action against it, the plaintiff must prove both; the cause of action and .the commencement of legal proceedings within the time mentioned by the statute-

APPEAL from Ouaehita County. Hon. B. F. Askew, Circuit Judge. 1. All fees allowed in criminal cases, shall, if the defendant is acquitted, be paid by the County, and if convicted, hen by the defendant, if he has property sufficient for that purpose, if uot, then they shall be paid by the County where the conviction is had. Acts 1874-5, page 169, See. 5; Gantt’s Dig., Sec. 2015. Nor is the County liable for costs in cases of conviction, until execution shall have been issued against the property of such convict, and returned unsatisfied for the want of property, unless the court trying the case shall certify that the costs cannot be made out of the defendant, lb. Sea. 2016. The proof, in the ease does not show, that any of the defendants in the list of cases, in which appellee claims fees, were at any time acquitted; nor that any of them were convicted and did not have property to pay the costs; nor that execution ever issued against any of said defendants and returned unsatisfied for the want of property to satisfy same, nor that the court in which the cases were pending, had at anytime adjusted and certified the costs and expenses therein, down to the County Court. The appellee wholly failing to show any inability on the County to pay any of the costs claimed by him, he is not entitled to recover. 2. Our Statute of Limitations in its scope and application, is general. And Counties and municipal bodies, not possessing the attributes of sovereignity are subject to its restrictions. JBouv. Inst. Yol. 1, See. 859; See also, Lane v. Kennedy, 13 Ohio St; 42 Callaway.v. Nolly, 31 Mo., 393. The rights involved in this case are of a private nature in reference to which, there is no reason why a County should not fall within the limitation statutes, and be affected by them. Billon on municpal corporations, 3, Ed. Sec. 675., See also Sec. 668. The proof shows that appellee’s right of action did not accrue, if at all later than the winter of 1874-5, and that the answer of the Statute of Limitations is a complete bar. Gaines et alv. Hot Spring County, 39 Arh., 262. The County is made by law liable for the eosts of criminal prosecutions originating in her Circuit Court, of offences committed within her teritory ; Gantt’s Dig., See. 2015, and 2016. It matters not whether there is a conviction or acquittal; the responsibility of the County is the same, except that in case of convictions, the County is not liable until insolvency of defendant is determined by return of execution or order of the court. There is no claim that any convictions were ever had in the cases in which appellee makes his charges. Not only so, but the County is responsibile for the laches and negligence of the prosecution. Gantt’s Dig., See. 1864-65. A critical examination of our Criminal Statutes, leads inevitably to the conclusion that the Statutes of Limitations has no application to the claim of the appellee, since the date of the accrual of the right of action in the first instance, is dependent upon the conduct of the State, or the prosecutions. 10 Arle., 223, and all subsequent decisions on the subject. In this case the accrual of the right of action is determined on the general principle, that one, having waited a reasonable length of time for another to act so as to protect his rights, has the right to say when the right of action accrues. In other words the State becomes a kind of trustee. 22 Ark, 1. Besides the State (the sovereign) and her paymaster (the County) are not permitted to plead the Statute of Limitation. At the time of the presentation of his claim to the County Court for allowance, he had a right to assume that the criminal prosecution had been dismissed or abandoned. The memorandum sworn to by him immediately after the destruction of the records of the County, Dec. 19th, 1875, and made out a year before on bis retirement from office is as full as he was permitted to make, Gantt’s Dig., See. 1799-1800, and that his testimony in epnfirmation of the truth of the same, is sufficient to raise the presumption of its truth. It being shown that no other proof could be had, the proof is sufficient.