Plaintiff, appellee, sued defendant Shelton and the sureties on his official bond as treasurer of Blount county for a breach of the bond, in that defendant Shelton had received $1,000 of the money of the county for which he had failed to account.
Appellants, defendants, assign for error the ruling of the trial court sustaining a demurrer to their plea 2, wherein defendants set up a settlement since the last continuance. Appellants are not in a position to complain of this ruling for the reason that they had advantage, substantially, of the same defense under plea 1, demurrer to which was overruled.
But the defense amounted to nothing in any event, for proof of it rested upon an agreement purporting to have been made between defendant Shelton and three members of the commissioners' court acting individually, not as a court; that is, the agreement of settlement was signed by three commissioners at a time when there is no pretense that they were acting in their organized capacity as a court (Wightman v. Karsner, 20 Ala. 446), and of their action, then or elsewhen, no memorial was entered upon the records of the court, by which means only the court could speak. Crenshaw County v. Sikes,113 Ala. 626, 21 So. 135. It results that there was no error in the ruling excluding from the evidence the so-called agreement in writing by which there was an effort, of a sort, to settle the action between the parties.
There was no error in admitting checks and receipts showing payments to defendant Shelton as county treasurer by the tax collector. Receipts of money thus shown went to defendant's credit at the bank, and thus the county competently sought to show its ownership of the fund out of which was paid the sum of $1,000, the amount in controversy.
It was shown without dispute that defendant during his term of office as county treasurer had received the money in controversy on a check drawn in his favor by the tax collector. Defendant contended that so far as he was concerned this was a private *Page 443 transaction between himself and W. J. Shelton, who was tax collector, and that the county had no interest in it. On the other hand, the county insisted that defendant well knew that the money he was getting was the money of the county and was paid to him as treasurer; that the check bore the notation "1915 taxes." Defendant excepted to the following excerpt from the court's oral charge to the jury, "On the other hand, gentlemen of the jury, if you conclude from the evidence that the defendant Lon Shelton in his individual and private capacity borrowed from W. J. Shelton this $1,000, it would not make any difference whether the money was county money or not unless Lon Shelton knew it was county money," the context going to show the court's meaning to be that, in that event, the plaintiff could not recover; "but," the court proceeded, "if Lon Shelton knew the funds he was borrowing from W. J. Shelton was money in the custody of W. J. Shelton belonging to the county, and with that knowledge he participated with the Farmers' Savings Bank [the drawee] or with the officers of that bank in diverting that money, or in converting that money, then he would be liable." This charge, in small compass, stated the substance of the law of the case. It is criticized in the brief for appellant as ignoring the evidence adduced by him in support of his contention stated above and his further contention that upon a settlement between himself as county treasurer and the tax collector he (defendant) had received all the money the county was entitled to receive and that he had accounted to the county for the same. But the charge is not subject to that criticism. It stated the issues and left the finding to the jury without any suggestion as to what the evidence was or what it tended to show. If, as appellant contends, the county lost nothing, that was a question for the jury on the evidence, and, on the record before us, we cannot conceive that the jury misunderstood so plain an issue, nor can we say with any sort of assurance that they made a mistake.
Charge 3 was refused to defendant without error. The charge was confusing and misleading. It was not necessary that the county should show that the state had an interest in the money. Probably also the charge was capable of another construction that justified its refusal, viz. that defendant received the check, representing the money in suit, as taxes. And, in any event, the issues were clearly stated to the jury in the court's oral charge, and error cannot be predicated of a charge covering in part the same ground. Section 5364, as amended by Acts 1915, p. 815.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.