State v. Edward Purcell's Ex'r

• Decision Date: 01 January 1856
• Citation: 16 Tex. 305
• Parties: THE STATE v. EDWARD PURCELL'S EX'R AND OTHERS.
• Court: Texas Supreme Court

16 Tex. 305

THE STATE

v.EDWARD PURCELL'S EX'R AND OTHERS.

Supreme Court of Texas.

1856.

Where the bond of an officer was required by law to be approved by the county court, and appeared only to have been approved by the chief justice, a question was raised after the expiration of the term of office, whether the sureties were bound.

Where a suit was brought by the state, in 1853, on an official bond, for failure to pay over public money collected in 1840 and 1841, it was held that the claim was barred by the statute of limitations, or, from the lapse of time, was presumed to be paid. [2 Tex. 492;21 Tex. 753.]

Appeal from Brazoria. Tried before the Hon. Nelson H. Munger.

There were pleas of payment and the statute of limitations. The case was submitted to the court below without a jury. The facts appear from the opinion.

Attorney General, for appellant, cited Angell on Lim. sec. 34 et seq.

J. H. Bell, for appellees, cited Jones v. Borden, 5 Tex. 410.

LIPSCOMB, J.

This suit was brought against the executor of Purcell, and the securities of the latter, on his bond as clerk of the county court of Brazoria county, to recover an amount of money certified by the state comptroller to be due and unpaid, from the said Purcell, for money collected by him on licenses in the years 1840 and 1841. The bond of Purcell and his securities in the same, Mills and Townes, was executed on the 28th day of December, 1838. The amended petition, in which the securities are made parties, was filed December 9, 1853. The original petition in which Purcell's executor alone was sued, was filed 9th November, 1853. The defendants demurred, pleaded payment, the statute of limitations, and from the lapse of time since the accrual of the cause of action, that the debt must be presumed to have been paid.

There was no evidence but the bond and the comptroller's certificate, and the cause was submitted to the court without the intervention of a jury, and judgment given and entered up for the defendants, from which the state, by the district attorney, appealed.

The attorney general, in support of the appeal, shows by a reference to art. 241, Hartley's Digest, that the clerk of the county court was also ex officio county treasurer, and that the collection and paying over money collected by him for licenses was an official duty, and for the performance of which his securities were liable; and he relies, in answer to the defense set up, of the statute of limitations, and presumption of payment from lapse of time, on what he claims to be a rule of the common law, that “no time can run against the state.”

In disposing of the question of the liability of the securities on the bond we must refer to art. 237 of Hartley's Digest, in which it is provided, among other things, that there shall be elected for each county a clerk of the county court; that before entering upon the duties of his office, he shall enter into bond, with two sureties to be approved by the court, payable to the president and his successors in office, in the penalty of five thousand dollars, conditioned for the faithful performance of the duties of the office; and that he seasonably record all deeds and other instruments of writing required by law to be recorded in his office, and also all judgments, decrees and orders of the said court, and safely to keep all records, minutes, books, papers, and whatever belongs to his office, which bond shall be recorded in the said court, and deposited in the office of the clerk of the district court, and may be proceeded upon in the same manner as the bond of the clerk of the district court. The bond in this case follows the terms of the statute in its structure, but its only authentication is, “Witness, M. B. Williamson.” “Approved, William P. Scott, Chief Justice,” without showing that it had been presented to or approved by the court. The statute, cited before, requires that it should be approved of by the court. The act for organizing the court (art. 230, Hart. Dig.) declares that the county court shall be composed of one chief justice and two associate justices, and it requires a majority of the three to compose a court. This was in force when the bond sued on was executed. It would seem, therefore, that the chief justice, acting alone as such, did not, and could not constitute the court, and had no authority to approve the bond of the clerk of the county court. If done by the court, it should have been attested in some way showing that it was so approved in open court. I should incline to the opinion that for this defect and failure to comply with the requisitions of the law, the bond was not a good statutory bond, and not valid against the securities, although the principal could be sued for any money collected by him and not paid over to the state treasury; but, from the opinion we have arrived at, upon the other defenses set up in this case, it is not essential that we should decide on the validity of the bond sued upon.

The maxim that “ nullum tempus occurrit regi” is acknowledged to be in common use in the English courts, but that it is a rule of the common law is not so clear; and it may well be questioned whether it can claim to have had an existence anterior to the date of the first English statute of limitations, and was then only true so far as it referred to the time fixed by the statute as a bar to particular actions. We think so because it is very clear that in some instances time would, at common law, mature and constitute a...