Lawrence Cnty. ex rel. Sch. Twp. No. 10, Twp. 27, Range 26 v. Dunkle

• Decision Date: 31 January 1865
• Citation: 35 Mo. 395
• Parties: LAWRENCE COUNTY TO THE USE OF SCHOOL TOWNSHIP NO. 10, TOWNSHIP 27, RANGE 26, Appellant, v. JOHN C. DUNKLE, Respondent.
• Court: Missouri Supreme Court

35 Mo. 395

LAWRENCE COUNTY TO THE USE OF SCHOOL TOWNSHIP NO. 10, TOWNSHIP 27, RANGE 26, Appellant,

v.JOHN C. DUNKLE, Respondent.

Supreme Court of Missouri.

January Term, 1865.

Appeal from Lawrence Circuit Court.

T. A. Sherwood, for appellant.

The endorsements on the bond, purporting to be credits entered by the clerk for payments made thereon from time to time, during a term of years, and purporting to have been made before the demand became stale and before the time limited by the statute had expired, were competent evidence to take the case out of the statute, and should not have been rejected by the court. (1 Greenl. Ev. § 121; Ang. Lim. § 242; 39 Eng. L. & Eq. 62; Briggs v. Wilson, Chit. Contr. 858, 860; Anderson v. Weston, 6 Bing., N. C., 296; Hunt v. Massey, 5 B. & Ad. 902; Sinclair v. Baggaley, 4 Mees. & W. 312; Baker v. Milheen, 2 Id. 853; Smith v. Battens, 1 M. & Rob. 341; R. C. 1855, p. 1053, § 14; Craig v. Callaway County Court, 12 Mo. 94; McElroy v. Caldwell, 7 Mo. 587; 1 Greenl. Ev. § 174.)

It is the presumption of law that a public officer performs the duties of his office. In the case of School bonds, the law (R. C. 1855, p. 1424-5, §§ 25, 26) makes it the duty of the treasurer of the county, when any principal or interest is paid, to give a receipt therefor to the person so paying; and the duty of the clerk of the county court on presentation of such receipt, to credit the payment on the bond (just as the credits in this instance purport to have been made). And in the absence of opposing circumstances (and there were none in this case) it will be presumed that the county clerk did his duty. (1 Greenl. Ev. §§ 40, 227.)

Again; if the credits were entered on the bond when no payment was actually made, such entry was fraudulent. But fraud is never to be presumed. (Greenl. Ev. § 254; Sinclair v. Baggaley, 4 Mees. & W. 312; Caldwell v. Gamble, 4 Watts, 292.)

Ewing and Muir, for respondent.

The endorsements, purporting to have been made on the bond by the clerk, were properly excluded. An indorsement on a bond or note made by the obligee or promisee, without the privity of the obligor or promisor, is not admissible evidence of a payment in favor of the party making the endorsement, so as to repel the presumption of payment arising from the lapse of years, or to take the case out of the statute, unless it be first shown that it was made at the time of its date, or when its operation would be against the interest of the party making it; and then, on such proof being given, it is good evidence for the consideration of the jury. (Roseboom v. Billington, 17 Johns. 184-5; Whitney v. Bigelow, 4 Pick. 110; McGhee v. Green, 6 Port. 537; Watson v. Dale, 1 Port. 250; Skelton v. Skelton, and the cases of South Carolina; Gibson v. Peebles, 2 McCord, 418; Conklin v. Pearson, 1 Rich., S. C., 392; Cramer Estate, 4 Watts & Serg. 331; Davidson v. Harrison et al., 4 George, Miss., 41; 10 Ind. 368; 14 Ark. 159; Alston v. State Bank, 4 Eng., Ark., 460.)

The fact that the endorsements purport to have been made by the clerk of the county court, cannot affect or vary the application of the rule. The county is the plaintiff, and the clerk is but the agent of the county in this behalf. (Alston v. The State Bank, 4 Eng., Ark., 460.)

In that case the endorsement was made by the financial receiver of the Branch Bank of Fayetteville, and it was proved that the endorsement was in the handwriting of the financial receiver.

BATES, Judge, delivered the opinion of the court.

In the year 1863, proceedings were instituted by Lawrence County to recover of the defendants for the use of township 27, in range 26, moneys belonging to the school fund of that township. Their bond for the money was dated on 6th day of February, 1850,...