ment, if there are no funds, he shall indorse the warrant, "Not paid for want of funds," and thereafter it shall draw interest; and when there are funds to redeem interest-bearing warrants he shall give notice that he is ready to redeem, and interest on them will thereupon cease; and that no execution shall be issued on a judgment against a county, but that it shall be levied and collected as other county charges, and paid over to the judgment creditor. Held, that the limitations did not begin to run against a county warrant until there was a fund in the treasury from which to pay it.

4. Rev. St. par. 415, § 35, providing, in regard to claims against a county, that suit must be brought within six months after their submission to and refusal by the board of supervisors, refers to open, unliquidated accounts, and not to warrants.

Appeal from district court, Maricopa county; before Justice A. C. Baker.

Action by Julia Barth, executrix of Jacob Barth, deceased, against Apache county. Judgment for plaintiff. Defendant appeals. Affirmed.

DOAN, J. This is an action by the executrix of Jacob Barth, deceased, based upon 40 county warrants of Apache county, 35 of which are payable out of the general fund and 5 out of the road fund of said county. All were issued in the year 1884. All were presented in the year 1884, and after issue, to the appellant's treasurer for payment, and were by him indorsed, "Not paid for want of funds." Again in the year 1888 the said warrants were presented to appellant's board of supervisors to be exchanged for bonds under the funding act of 1887, which exchange was refused, and the warrants in question were marked in red ink across the face thereof, by the said board of supervisors, "Forgery," and then returned to their owner. Suit was commenced in Apache county in the year 1891, and, after various changes of venue, was finally tried in Maricopa county, on the 6th day of May, 1896, on which trial the counsel for plaintiff voluntarily withdrew all claim on 11 of said warrants "because a careful, microscopical examination of the said 11 warrants would show there had been an alteration of the figures, and that they had been vitiated by being raised, and on them the plaintiff made no claim." The case was submitted to the court, and taken under advisement, and thereafter, on the 20th day of March, 1897, the court found that all of the warrants sued on, except the 11 that were withdrawn, were valid, subsisting, and legal claims against the said defendant, Apache county, and judgment was rendered on the remaining 29 of said warrants in favor of the plaintiff and against the defendant for the sum of $14,352.13 and costs of the action, from which judgment defendant has appealed to this court.

The appellant has presented five assign

ments of error, as follows: "First. The court erred in not sustaining defendant's general plea of limitation. Second. The court erred in not sustaining defendant's special plea of limitation to each of the forty counts set up in plaintiff's amended complaint. and in finding against those pleas. Third. The court erred in finding that the warrants sued on, and each of them, save those admitted to be forged, was and were legally issued. Fourth. The court erred in finding against defendant's plea that the said warrants, and each of them, were forged, and of no binding effect on defendant. Fifth. The court erred in rendering judgment for plaintiff and against the defendant, for the reason that the said judgment was contrary to the evidence in the case, and that it was contrary to the evidence as shown by the record, and against the law of the case."

These

We will consider these assignments in their natural, rather than in their numerical, order. The first point is that raised in the third assignment: "That the court erred in finding that the warrants sued.on, and each of them, was and were legally issued." It has been held by the courts generally that "county and city warrants, signed by the proper officers, are prima facie binding and legal. These officers will be presumed to have done their duty. Such warrants make a prima facie cause of action. Impeachment must come from the defendant." Dill. Mun. Corp. § 502, and cases cited. warrants, copies of which were attached to the complaint, and the warrants themselves introduced in evidence, were proper in form and appearance. The wording was in accordance with the requirements relative to such warrants. The names and signatures were of the proper officers, and appeared to be genuine. Evidence to show fraud or corruption or want of authority in their issue could have been presented, and, if presented, should have been received by the court; but, in default of evidence overturning the presumption in favor of the legality of their issue, the ruling of the district court was correct. The record does not show any defense offered by the defendant further than the denial of their execution, and the empty denial, unsupported by any evidence, was insufficient to overcome the presumption established.

The next assignment is the fourth: "That the court erred in finding against defendant's plea that the said warrants, and each of them, were forged, and of no binding effect on defendant." This leads us to consider the nature of the pleadings. The complaint was founded upon the warrants in question, copies of which were attached thereto, and the originals were filed in the case, and introduced in evidence. Paragraph 735 of the Revised Statutes of Arizona provides: "Any answer setting up any of the following matters, unless the truth of

the pleadings appear of record, shall be verified by affidavit: A denial of the execution by himself or by his authority of any instrument in writing upon which any pleading is founded in whole or in part and charged to have been executed by him or his authority." The answer of the defendant "denies that the board of supervisors of said county of Apache ever ordered the issuance of the said warrants sued on, or either of them; denies that the said warrants, or any or either of them, were ever issued or directed to be issued by the board of supervisors of the said county of Apache, or by the authority of said board." This answer, up to the time the case went to trial and the plaintiff had presented her evidence and rested her case, was unverified; but, after plaintiff had rested, and defendant desired to establish the forgery of the warrants, it was permitted by the court to verify its answer. The verification was then made by the then recorder and ex officio clerk of the board of supervisors in the following language: "M. Gonzalez, being duly sworn, says that he is clerk of the board of supervisors of the county of Apache, in the territory of Arizona, and the custodian of the records of said board; that he has heard read the above and foregoing answer of the county of Apache, defendant in the above and foregoing action; and that the facts therein stated as defenses to the various causes of action declared on are true, and the warrants sued on are not genuine. Subscribed and sworn to the 6th day of May, 1896." It has been objected to this verification that it has not the essential elements of the affidavit required in the statute, and therefore is not sufficient to permit the defendant to attack the execution of the warrants, on the ground that the affidavit does not contain an allegation of knowledge on the part of the affiant, nor of information or belief upon points not within affiant's knowledge; that an affidavit that the facts stated are true does not apply to a denial; and that the allegation that "the warrants sued on are not genuine" is the statement of a conclusion of law. These points would be material if the defendant had gone forward under the verification to the answer, and presented evidence to disprove the execution of the warrants, or to establish their invalidity by virtue of fraud, irregularity, or other cause; but, as the only office of the verification would be to enable the defendant to establish such defense, and as no proof was offered, and rejected by the court, for which rejection error is assigned, and none was presented to overcome the presumption established by the prima facie case already made by the plaintiff, the sufficiency of the verification does not become material, and any ruling thereon herein would be simply obiter dictum, unless on the theory advanced by defendant that the verification of the answer by defendant necessitates plaintiff's establishing, by corrobora

tive, affirmative evidence, the execution and issue of the warrants, and the regularity and legality of the actions of the board in so doing. This position is not tenable. The weight of authority is decidedly that the effect and extent of the verification is to enable defendant to disprove by affirmative evidence the execution of the warrants, or the regularity or legality of the proceedings on which their issue was based, and that the prima facie case already made by the presentation of the warrants, duly executed and in proper form, stands until thus destroyed. The supreme court of the United States held in a similar case, in Wall v. Monroe Co., 103 U. S. 74: "The warrants in suit are evidences of indebtedness by the county, issued by that branch of its government to which is intrusted, by the laws of the state, the examination and approval of claims against the county. They are orders upon the treasurer to pay out of its funds for county purposes, not otherwise appropriated, the amounts specified. They establish prima facie the validity of the claims allowed and authorize their payment." The defendant objected to the introduction of the warrants in evidence. The court took the evidence subject to the objections, reserving his ruling thereon; hence there is no exception on the part of the defendant to the ruling of the court admitting the warrants in evidence. But at the time plaintiff made her case, and offered the warrants in evidence, there was no verified answer before the court to prevent the allowance of the warrants in evidence; hence it is not necessary to decide whether a verified answer should have excluded such warrants from evidence until duly proven. The answer was verified after plaintiff's evidence had been presented, and prima facie claim established, and plaintiff had rested her case. "The plaintiff made a prima facie case when she produced and proved her warrants. * * * The burden would then be shifted to defendant to overturn the presumption of liability." Grayson V. Latham (Ala.) 4 South. 202. The prima facie case thus made might have been overcome by disproving the issue of the warrants, or the allowance of the claims on which they were based, or the legality or validity of such action by the board, if it had actually been taken. The denial of their signatures by the officers whose names were attached to the warrants, or by experts or persons familiar with those signatures, or the presentation of the records of the board covering the dates on which the warrants were alleged to have been issued, if such records failed to show the authorization of the issue of the warrants, or the allowance of the claims on which the warrants were based, would have affected their validity. There was no evidence, however, introduced by the county tending to disprove the issue of the warrants in question by the board of supervisors, nor was there any

thing offered to attack or question the legality or regularity of their issue. The defendant introduced the testimony of the recorder of the county and clerk of the board, who was, at the time of trial, the custodian of the records. The records of the county, produced by him, showed that the records of the allowance of claims and issue of warrants in the year 1884 were entirely absent, and that the only record was that commencing in the year 1885. Neither he nor any other witness produced by the defendant offered testimony of any personal knowledge relative to the issue of the warrants in question by the board, or the allowance by the board of the claims in payment for which the warrants in question were issued. On this evidence the district court held that the warrants presented, apparently regularly and properly issued, were prima facie evidence of a valid, legal, and subsisting claim against the said defendant, Apache county, and that finding will not be disturbed by the appellate court.

It is contended by the appellant that the court erred in not sustaining defendant's general plea of limitation. Our statute provides (Rev. St. par. 2314) that "actions for debt where the indebtedness is evidenced by or founded upon any contract in writing executed within this territory, shall be commenced and prosecuted within five years after the cause of action shall have accrued and not afterwards." The warrants sued on were issued in 1884. Suit was instituted in 1891. The appellant therefore contends that the claim is barred by the statute.

It

is necessary to consider the nature of the claim, and the statutes under which the warrants were issued, as well as the intermediate steps taken by the claimant during this time, in order to determine when the cause of action accrued; i. e. to determine at what time, under the contract, he had such a claim against the county as could have been enforced by an action at law. The Compiled Laws of 1877, under authority of which these warrants were issued, provide (chapter 6, §§ 9-11, 13), as follows:

"Sec. 9. The county treasurer, when an order drawn on him as such treasurer, by the commissioners of his county, is presented for payment, shall, if there be money in the treasury for that purpose, redeem the same, and shall write on the face of such order, 'Redeemed,' the date of redemption, and shall sign his name thereto.

"Sec. 10. When any order or warrant shall be presented to the county treasurer for payment, and the same is not paid for want of funds, the treasurer shall endorse thereon 'Not paid for want of funds,' annexing the date of presentation, and sign his name thereto, and from that time until redeemed said order or warrant shall bear ten per cent. interest per annum.

"Sec. 11. So soon as there shall be sufficient funds in the treasury of the county to

redeem the orders or warrants drawing interest, the county treasurer shall give notice, ** stating therein that he is ready to redeem said orders or warrants, and from the date of such notice said orders or warrants shall cease to bear interest."

"Sec. 13. Orders or warrants drawn on the county treasurer, and properly attested, shall be entitled to preference as to payment out of moneys in the treasury properly applicable to such order, according to the priority of time in which the same may have been presented. The time of presenting such order shall be noted by the treasurer, and upon the receipt of any moneys into the treasury not otherwise appropriated, it shall be the duty of the treasurer to set apart the same, or so much thereof as may be necessary for the payment of such order or warrant." It appeared in evidence on the trial of the case that the warrants sued on had in each instance, after their issue by the board, been presented to the county treasurer, and had been by him indorsed thereon, "Not paid for want of funds," with the date of the presentation, and the signature of the county treasurer affixed thereto. It was also proven on the trial that the first date at which there were sufficient funds in the county treasury to redeem any of the said warrants was on the 19th day of April, 1888, and at that time the notice for the presentation of such warrants was made as provided in the statutes. It was further proven that the funds then in the treasury for this purpose were provided under the funding act of 1887, approved March 2, 1887, for the purpose of enabling the several counties to pay, redeem, or refund their outstanding indebtedness by the issue of bonds for such purpose, which bonds should either be exchanged for the warrants thus outstanding and drawing interest, or be sold, and the funds arising from such sale placed in the county treasury, and known as the "County Redemption Fund," and applied to the payment of outstanding county indebtedness under the provisions of that act, one of which was paragraph 2066, Rev. St. 188S7: "The treasurer shall pay no warrant nor exchange for any warrant under this act unless the same has been presented to the board of supervisors and approved by a majority of such board, provided if, after any warrant has been refused by the board, the person holding the same shall recover a judgment against the county on such warrant, the said judgment may be paid under the provisions of this act." appears that the holder of these warrants presented the same, under the provisions of the last section, to the board of supervisors of the appellant, in the year 1888, in order to have them approved by said board for payment or exchange by the county treasurer, according to his advertisement, under the funding act; and that the warrants were then refused by the board, marked "Forgery," and returned to the holder. It is

It

contended by the appellant that the cause of action against the county accrued on the date of the issue of the warrants, and that the statute began to run from that time. It is contended by the appellee that the cause of action did not accrue until there were sufficient funds in the treasury to pay such warrants, which the testimony in this case shows to have been on the 19th of April, 1888. A county warrant is different from a promissory note, although it has been said that "a county warrant is, in legal effect, the promissory note of the county." Board

v. Day, 19 Ind. 450. In the case of a promissory note or a bond with a definite time of payment, a cause of action accrues immediately upon the maturity of the instrument, or the date of payment as fixed therein; but with a county warrant the case is different. "A municipal corporation is a subordinate branch of the domestic government of the state. As a local, governmental institution, it exists for the benefit of the people within its corporate limits. Indebtedness may be incurred to a limited extent in carrying out the objects of the corporation. Evidence of such indebtedness may be given to the public creditors, but they must look to and rely on the legitimate mode of raising the funds for its payment. That mode is taxation." Mayor, etc., v. Ray, 19 Wall. 468. It was held in Brewer v. Otoe Co., 1 Neb. 373-384, in a similar case, arising under statutes almost identical with ours, that: "Whoever deals with the county, and takes in payment of his demand a warrant in the character of these, no time of payment being fixed, does so under the implied agreement that, if there be no funds in the treasury out of which it can be satisfied, he will wait until the money can be raised in the ordinary mode of collecting such revenues. He is presumed to act with reference to the actual condition of the laws regulating 'and controlling the business of the county. He cannot be permitted, immediately upon the receipt of such warrant, to resort to the courts to enforce payment by judgment and execution, without regard to the condition of the treasury at the time, or of the laws by which the revenues are raised and disbursed. If there is money in the treasury belonging to the fund against which it is drawn, not otherwise provided, it is the duty of the treasurer to pay the warrant; but, if there be none, he must indorse upon it the fact of its presentation and nonpayment for want of funds, and the holder must wait for his money until such time as it can be raised through the means which the legislature provides for the collection of revenues. Nor can any action rightfully be brought on such warrant until the fund is raised, or at least sufficient time has elapsed to enable the County to levy and collect it in the mode provided in the revenue laws. The plea of the statute of limitations cannot be successfully made against these warrants, and,

whenever it can be shown that the funds have been collected out of which they can be paid, or sufficient time has been given to do so in the mode pointed out in the statutes, their payment may be demanded, and, if refused, legally coerced." This decision of the supreme court of Nebraska was quoted and approved by Chief Justice Waite of the United States supreme court in King Iron Bridge & Manufacturing Co. v. Otoe Co., in 124 U. S. 459, 8 Sup. Ct. 582, in which the court held, in a suit on warrants under similar circumstances to the case at bar, that "the cause of action did not accrue when the payment was refused for want of funds, but only when the money for their payment is collected, or time sufficient for the collection of the money has elapsed." The application of this ruling to the case at bar is strengthened by the fact that it was rendered on the theory, as it is laid down generally, "that the judgment against a county or a municipal corporation is ordinarily no more than the mere establishment of a valid claim, for which it is the duty of the proper officers to provide means of payment out of the revenues of the defendant." Freem. Ex'ns, par. 22; Beach, Pub. Corp. 1653; Dill. Mun. Corp. 576, and cases cited. But in this instance our statute specifically provides (section 19, c. 2, Laws 1877): "When judgment shall be recovered against the county commissioners or against any county officer in an action prosecuted by or against him in his name of office no execution shall be awarded or issued upon such judgment, but the same unless reversed shall be levied and collected, as other county charges, and when so collected shall be paid by the county treasurer to the person to whom the same shall have been adjudged upon the delivery of the proper voucher." So that to hold that a right of action would exist in favor of the holder of the warrants or orders immediately after issue, and nonpayment for want of funds, would authorize a suit against the county, which would only have entitled the successful litigant to a warrant drawn upon the treasurer by the same board who had already drawn upon the treasurer the warrant upon which the suit was brought, which would be a useless procedure, and demonstrates clearly that such is not the contemplation of the law.

The further fact is alleged that 35 of these warrants were payable out of the general fund and 5 of them out of the road fund, and it has been repeatedly held by the courts in different states, and by the supreme court of the United States in Lincoln Co. v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, that, "when payment is provided for out of a particular fund to be created by the act of the debtor, he cannot plead the statute of limitations until he shows that that fund has been provided." No provision was made by the county for the payment of these warrants until 1888. The statute of limitations did not, therefore, be

gin to run against the warrants until that time, and this suit, filed in 1891, was within the five-years limitation.

It is next assigned that the court erred in not sustaining defendant's special plea of limitation. Defendant alleged that the appellee "presented the said warrants, and each of them, to the board of supervisors, on the 9th day of January, 1888, and the same were then and there adjudged to be forgeries, and disallowed, and rejected as binding obligations upon said county; and the plaintiff did not, within six months thereafter, bring action on said warrants against the said county after such rejection, as provided in paragraph 415, § 35, Rev. St." The Revised Statutes provide, in regard to the presentation and allowance of claims against the county (paragraph 412): "The board of supervisors must not hear or consider any claim in favor of an individual against the county unless an account properly made out, giving the items duly verified is presented to the board within six months after the last item of the account accrued." Paragraph 414: "When the board finds that any claim presented is not payable by the county, or is not a proper county charge, it must be rejected. If they find it to be a proper county charge, but greater in amount than is justly due, the board may allow the claim in part and draw a warrant for the portion allowed. * * *" Paragraph 415: "A claimant dissatisfied with the rejection of his claim or demand or with the amount allowed him on his account may sue the county therefor at any time within six months after final action of the board but not afterwards." These are provisions in regard to open accounts and unliquidated claims, and are intended to relieve the county from having to meet the items of an open account years after the data relative to the items thereof may have passed from the knowledge of the officers of the county, and they, therefore, be unable to establish the facts in regard thereto, or to resist fraudulent claims or incorrect statements; and do not apply to a liquidated claim that has been audited and determined. On this subject, in Heffleman v. Pennington Co. (S. D.) 52 N. W. 851, the court said: "The duty of the board is to judicially investigate the validity and justice of the claim, and to allow or disallow the same, in whole or in part, as to such board shall appear just and lawful. While the immediate purpose of the warrant is to enable the claimant to whom it is delivered to draw from the county treasurer the amount of money therein named, yet it rests upon, and its issue and payment could only be justified upon, the theory that after the full investigation the county had found itself to be so indebted; so that the warrant is a formal and deliberate acknowledgment by the county of such indebtedness." In the case of the warrants now under consideration, when the board of supervisors audited and allowed the accounts presented, and issued the warrants on the

treasurer in payment thereof, they took those claims from the list of unliquidated accounts, and by their certificate and acknowledgment of the indebtedness of the county thereon placed them with the outstanding indebtedness of the county. The validity and amount of the liability were then definitely fixed, and warrants on the treasurer given, payable at a future time. The treasurer could pay them in order of presentation without further action of the board, if he had funds in his hands applicable to that purpose; and the presentation to the board afterwards, in 1888, was not made under the provisions of paragraph 415, as claimed by appellant, but, as heretofore stated, was made under the provisions of paragraph 2066, Rev. St., for the purpose of having the board approve the payment or exchange of such warrants from the fund thus provided; and the said paragraph 2066 specifically provided that "if, after any warrant has been refused by the board, the person holding the same shall recover a judgment against the county on such warrant, the said judgment may be paid under the provisions of this act." It is under the provisions of this paragraph that this suit is brought. This directly contemplates action on the warrant, which is "an instrument in writing" to which the five-years limitation applies, and the six-months limitation provided by paragraph 415 for open accounts before adjustment is inapplicable.

The fifth general assignment does not call for special attention or direct ruling, as it is not definite or specific, and simply raises, in general terms, the points already presented in the former assignments. The record disclosing no error, the judgment of the district court will be affirmed.

STREET, C. J., and DAVIS and SLOAN, JJ., concur.

(5 Ariz. 352)

TIDWELL v. CHIRICAHUA CATTLE CO. (Supreme Court of Arizona. April 16, 1898.) EJECTMENT-PUBLIC LANDS-CONVEYANCE by SetTLER-ADMISSIBILITY OF DEEDS-CORPORATIONS -POSSESSION-ENTRY BY INTRUDER-UNLAWFUL

INCLOSURE.

1. Rev. St. par. 2222, § 1, provides that all persons who have "settled on and cultivated" land with the view of taking the benefit of the pre-emption laws of the United States shall be protected in the enjoyment of such tract, "with all the improvements thereon," to the extent of 160 acres; paragraph 2223, that all the rights so acquired "may be sold and conveyed as interests in real estate"; paragraph 3135, that ejectment may be maintained where plaintiff is "legally entitled to the possession"; and paragraph 3138, that defendant may give in evidence, under the plea of "not guilty," any testimony to show that plaintiff is "not entitled to such possession, or that the title is in some other person other than the government." action for the possession of a tract of about 100 acres, the plaintiff corporation introduced certain deeds of record, by which it deraigned title from its grantors and predecessors in interest, who were former owners and holders

In an