[Lansford v. Scott.]

matter that might be specially pleaded; and issue was joined on all these pleas. The defendant requested the court to charge the jury, that, as to the common counts, the statute of [imitations would run up to the filing of the amended complaint. The court refused to give this charge, and instructed the jury instead, that the amendment related back to the commencement of the suit; and that the statute of limitations was no defence, unless it had effected a bar at the commencement of the suit. The defendant excepted to the charge given by the court, and to the refusal of the charge asked; and he now assigns them as error.

E. A. O'NEAL, with WM. COOPER, for appellant.

R. O. PICKETT, contra.

B. F. SAFFOLD, J. — The question at issue is, whether the statute of limitation of three years is pleadable in bar, to the common counts, introduced by amendment into the complaint founded upon a promissory note given for the same cause of action, the limitation having expired since the commencement of the suit on the note, but before the amendment was made. Does such an amendment relate back to the date of the summons?

In Bradford v. Edwards (32 Ala. 628), which was a suit for slander, the record did not show what parts of the complaint were amended, nor when the amendment was filed or allowed. The court said, the amendment did not bring forward a distinct and independent cause of action, but only varied the words expressive of the same charge. In Agee v. Williams (30 Ala. 636), which was detinue for slaves, the amendment of the complaint declared the right of the plaintiff to be in his representative, instead of his individual capacity. The court said, the amendment was not the beginning of a new suit, but the correction of a fault in the pending suit. The defence attempted to be set up in that case was adverse possession of six years. In the other, it was the limitation of one year since the words were spoken. They would have applied to the dates of the respective amendments. But the court held, that such amendments would relate back to the commencement of the suit.

In King & Wife v. Avery (37 Ala. 169), the court said: "We think the rule must be regarded as settled by the authorities, that if, during the pendency of a suit, any new matter or claim, not before asserted, is set up and relied upon by the complainant, the defendant has a right to insist upon the benefit of the statute until the time that the new claim is

[Shouse v. Lawrence.]

presented; because, until that time, there was no lis pendens as to that matter, between the parties. On the contrary, if the amendment set up no new matter or claim, but simply vary the allegations as to a subject already in issue, then the statute will run only to the filing of the original bill." In this case, the statute of limitations was held to be a bar to relief sought, in the enforcement of the husband's marital rights, by amendment of the bill, originally filed in the name of his wife as a femme sole, although the bar was not complete at the time of filing the original bill.

An action on an open account must be brought within three years from the time it is due. R. C. § 2904. One founded on a promissory note may be brought within six years. R. C. § 2901. If a complaint on a note may be amended by the introduction of a count on the account for which the note was given, with the effect of the relation of the amendment back to the date of the summons, the limitation of three years may always be avoided, by declaring on a note, and then amending with the common count. The giving of a note, without more, is not a satisfaction of a preëxisting debt. But it has the effect to suspend the creditor's remedy upon it until the maturity of the note. Brick. Dig. p. 287, §§ 501, 502. It follows from these propositions, that the amendment made in this case did bring forward a distinct and independent cause of action. The charge given was erroneous, and so was the refusal to give the one asked by the defendant.

The judgment is reversed, and the cause remanded.

Shouse v. Lawrence.

Motion for Summary Judgment against Sheriff and Sureties on

Official Bond.

1. Discontinuance; waiver of.—A subsequent appearance by the defendant, without objecting to an alleged discontinuance, is a waiver of it.

2. When amendable defects are not available on error.- Defects or irregularities, which, if objected to in the primary court, might have been remedied by amendment, are not available on error.

3. Summary proceedings; presumptions in favor of. In summary proceedings by notice and motion, if the record shows that the court has jurisdiction, and that the parties appeared and joined issue, the same presumptions will be indulged in favor of the judgment as in actions commenced by summons and complaint.

APPEAL from the Circuit Court of Talladega.

The record does not show the name of the presiding judge. In this case, as the record shows, a motion was entered on the docket of said circuit court on the 15th September, 1871, in the name of "Frederick N. Lawrence, as surviving assignee

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[Shouse v. Lawrence.]

of W. G. Lane & Co.," for a summary judgment against F. M. Shouse, as sheriff of Talladega county, and the sureties on his official bond as sheriff, on account of the failure of the said sheriff to return an execution, which came to his hands as sheriff, and which was issued on a judgment for $3,749 rendered by said circuit court on the 9th October, 1867, in favor of Lewy M. Wiley and Frederick N. Lawrence, as assignees of W. G. Lane & Co., against Daniel Wallis, as survivor of D. & W. Wallis. The record does not show that the defendants had any notice of this motion, or that any action was taken on it at the September term, 1871; but, at the ensuing March term, 1872, as the minute-entry recites, the motion was continued by consent of parties;" and at the September term, 1872, the following judgment was rendered: "This day came the parties, by their attorneys; and it appearing to the satisfaction of the court, neither party demanding a jury, that at the spring term of this court, 1871, and while the defendant Shouse was the sheriff of Talladega county, and the other defendants," naming them, "were his securities, this motion was put upon the docket, and that it has been regularly continued up to this term of the court; and it further appearing to the satisfaction of the court, that on the 29th day of May, 1870, an execution was issued by the clerk of the circuit court of this county, on a judgment rendered in said court on the 10th day of October, 1867, at the suit of Wiley & Lawrence, trustees, v. Daniel Wallis, survivor, for the sum of $3,749.27, for the amount of said judgment, returnable to the fall term of this court, 1867; which execution, it appears, went into the hands of said Shouse, as sheriff as aforesaid; and it further appearing that said Shouse has failed to return the said execution, [and that] the other defendants continued as his securities up to the date of this default; it is therefore considered by the court, that the plaintiff recover of the defendants the sum of $749.80, together with the costs of this motion; for which let execution issue."

There is no bill of exceptions in the record. The errors assigned are: 1. The motion was discontinued. 2. There is a variance between the judgment described in the motion, and that recited in the judgment on the motion. 3. The court erred in rendering judgment without evidence that the execution went into the hands of the sheriff. 4. The court erred in rendering judgment without evidence that the execution went into the hands of the sheriff while it was in force.

JOHN T. HEFLIN, for appellants.

R. D. RUGELY, contra.

[Briggs v. Coleman.]

BRICKELL, J. — If, as insisted by the appellants, there was a discontinuance of the motion against them, by the appellee's failure to invoke any action upon it at the term of the court at which he had given notice it would be made, the discontinuance was waived by their subsequent appearance, without objection, at the succeeding term of the court, and consenting to a continuance. Evans v. State Bank, 13 Ala. 787.

The record discloses that the circuit court had jurisdiction of the motion. The appellants appeared, and waived a trial by jury, consenting that the judge should hear and render judgment on the evidence. All the objections now made to the judgment could have been cured in the circuit court by an amendment, if there presented. Of the right of amendment, the appellants deprived the appellee, by failing to interpose the objections now made. It is too late for them to urge these objections in this court. Such would unquestionably be true, if the suit had been in the ordinary mode, instead of summary by motion. In statutory proceedings, the rule is the same, when the record discloses jurisdiction, and the defendants appear and join issue with the plaintiff. Then, the proceeding is treated as if it had been commenced in the ordinary mode. Smith v. Br. Bank Mobile, 5 Ala. 26; Rutherford v. Smith, 27 Ala. 417. No formal issue appears from the record to have been formed; but, on error, when the record shows that the parties appeared, and submitted the facts to a jury, the presumption is, that it was waived, or that there was a proper issue formed. The same presumption attaches when the court is the trier of the facts. Smith v. Br. Bank Mobile, supra. There is no error in the record, and the judgment is affirmed.

Briggs v. Coleman.

Action on Official Bond of County Treasurer.

1. Witness certificates; presentation of, to commissioners' court. It is not necessary that the certificate of a witness for the State in a criminal case should be presented to the commissioners' court for allowance, since it is not a claim against the county, but is, except in particular cases, a primary charge on the fine and forfeiture fund of the county.

2. When action lies on official bond of county treasurer. The failure of a county treasurer to pay the certificate of a state witness, when it is a charge on the fine and forfeiture fund of the county, and he has proper funds with which to pay it, is a breach of the condition of his official bond, for which an action lies.

APPEAL from the Circuit Court of Greene.

The record does not show the name of the presiding judge. This action was brought by Samuel G. Briggs against Charles Coleman, county treasurer of said county of Greene,

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[Briggs v. Coleman.]

for an alleged breach of the condition of his official bond. The complaint set out the condition of the bond, and alleged the following breach thereof: "He has failed to pay plaintiff, out of the fines and forfeitures in the county treasury of said county, the sum of $216.95, due plaintiff in witness certificates, which had the circuit clerk's certificates that they were good claims against the said county, which were registered by preceding county treasurers; which was brought to the notice of said Coleman in December, 1871, and which certificates were, in December, 1871, presented to said Coleman for payment; and he has failed and refused to pay the same to the present time. Plaintiff avers, that more than said sum of $216.95 has been paid out by said Coleman as county treasurer, subsequent to said December, 1871; which said payment was contrary to law, and to the injury of plaintiff to said amount. Said sum claimed is the property of the plaintiff."

The complaint contained a second count, in these words: "The plaintiff further claims of the defendant the aggregate sum of $216.95, due in detail, in the sums, and at the dates set forth, as follows," specifying them, "by account stated between the parties to the same; said sums being due state witnesses in state cases pending in the circuit court of Greene, or transferred on change of venue from said court; being cases in which the defendants were not convicted, and the costs were not imposed on the prosecutor; or where costs were imposed on the defendant or the prosecutor, and an execution therefor was returned 'No property found;' or where no indictment was found by the grand jury before whom the said witnesses appeared; which facts appear on each of said respective claims, by the clerk's certificate thereto. Each of said claims is the property of the plaintiff, and said sums are due and unpaid. Plaintiff avers, that said sums respectively were duly registered in the office of the county treasurer of said county, by the preceding treasurer; and that such registration was brought to the knowledge of the defendant in December, 1871; and that said defendant has paid other claims, as against and out of said fine and forfeiture fund, which have been registered since he registered and demanded payment of the amounts due him respectively out of said fund; and that there has been in the hands of the said defendant, of the said fine and forfeiture fund, enough to pay his said claims; and that he has wholly failed to pay said claims; to the plaintiff's injury as aforesaid."

The court sustained a demurrer to each count of the complaint, because there was no averment that the claims had been audited and allowed by the commissioners' court; and the judgment on the demurrer is now assigned as error.