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(256 F.) by a most able and instructive opinion. It calls act that it has been declared by the Alabama courts revenue is the repository of the authority and jurislegislative, judicial, or executive, committed to the his body is entitled "a court of record.” Authorities

conclusion reached that, in the several matters comthe county board exercises a discretion that cannot hem, and that, in the performance of such duties, they on that is quasi legislative, and that their acts in this e from fraud, corruption, or unfair dealing, cannot

reviewed by any other court. From these general rom the authorities in the case cited and universally be concluded that, in determining whether or not the d be built, and upon what lot it should be built, and hould be (within the limit of the taxing power to dis

and in the employment of an architect, and in fixing 1, and in the manner of letting the bid, and in deom the contract should be let, the board of revenue exion which can in no manner be controlled, and that

reference to these matters is subject to judicial coren it is charged and established that there was fraud articipated in by the governing majority of the board, of the functions committed to them. No court, then, he contract entered into between the board of revenue cept upon the ground of fraud. ore us, however, presents not only this question, but uestion as to whether, under his contract, Stevens had s contract as to be entitled to have paid to him the sum termination requires consideration of the character of arged by the county commissioners' court when claims or payment. It is entirely clear that, if claims are rebe instituted upon them in the courts; and the proposieen made thật, in addition to establishing the validity of nust also be established that the county commissioners' ing them, have been guilty of fraudulent conduct. If sisted that, in passing upon these claims, the county are really exercising judicial functions, and if the h they reach is a judgment reviewable only for fraud, allegation would have to be made and proved before h one had against the county could be established in the s. The conclusion is not one that could be accepted. If vt exercising judicial functions when it rejects a claim, that it is exercising judicial functions when it approves character of its act must be held the same in either event. on of the county commissioners in the approval of the her ripened into some character of evidence of indebtedthat different status may be attained; and when such ndebtedness shall have acquired the status of negotiable loubtless different rules would be applicable. But, so ims are still unpaid and not substituted by a new character

of county obligation, there would appear to be no reason why the county could not have the same access to a court to establish the invalidity of the alleged claim as a claimant whose claim had been disallowed, to establish its validity. The only difference would doubtless be that allowance by the county board would be prima facie evidence of the validity of the claim.

Making direct application of these principles to the instant claim: If fraud in making the contract be shown, no question could arise about the right of the county to attack the board's allowance of the claim, and have the warrant declared illegal. The county may also establish, even if the contract was valid, that it was not performed, and that the resolution adopted by the board of revenue was improvidently and improperly passed on account of that fact. The views which are here expressed are amply sustained by the Alabama authorities.

Commissioners' Court v. Moore, 53 Ala. 27:

"In the exercise of this authority, the act of the court is not judicial, but executive. If it audits and allows a claim not properly and legally chargeable on the county, or which it has not authority to allow, it exceeds the power with which it is intrusted, and as the act of a corporation which is ultra vires is void, so is the action of the court. Or if, upon false evidence, it should be lured into the allowance of an unjust claim, or should allow a claim which was wanting in consideration, or the consideration of which failed, the county would not be estopped from defending against it. The audit and allowance has no more force and effect than a settlement between individuals. It is a simple admission by the court of county commissioners that there is a valid subsisting debt due and owing by the county. The admission prima facie fixes a liability on the county. So, if a settlement is had between individuals, and the one makes his note or bond payable to another for an ascertained balance, a prima facie debt is established. In each case the burden of impeachment rests on him who questions the prima facie evidence. If, after the audit and allowance, a warrant is, pursuant to the statute, drawn on the county treasurer, it is a mere authority to him to pay. It is nothing more really than an order on the county itself, the debtor. Dillon, Munic. Cor. 88 406–412. When such warrants have been illegally issued-issued without authority, or when any just defense exists against the claim which they evidence the county may maintain a bill in equity for their cancellå tion. Id. § 412. And this we incline to regard as the most appropriate remedy. When the claim has been audited and allowed by the commissioners' court, it ceases to be the subject of a suit in the ordinary modes against the county. If the commissioners' court fail to levy and collect a tax for the payment of such claim, they fail to esercise a ministerial or executive power, with which they are clothed, and in the exercise of which an individual has a right and interest, and mandamus lies to compel its exercise. Marshall County v. Jackson County, 36 Ala. 613. The answer to the application for such writ could set up the invalidity of the claim audited and allowed. If the funds are in the treasury of the county to pay the same, and the county treasurer should be proceeded against for a failure to pay on demand, it would be his duty to set up in defense the invalidity of the claim."

"The Claim for $7,025.-The contract of Stevens with the county provided for payment to him for the services therein set forth of 5 per cent. of the cost of the building. Under the terms of the contract, a part of this was payable at the time the contract for the construction of the building was let; and the $4,198.14, already discussed, was the three-fifths of the total amount held payable at that time. The balance of the compensation of the architect was to have been paid as the work

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(256 F.) ile the $4,198.14 was based upon the bid of the Littley, the total is based upon the bid of the Falls City Conny finally accepted. The work of the Falls City Comabandoned, but this fact cannot affect the claim of otherwise meritorious; and the circumstance that the is the result of the action of the county, and also the tract with Stevens was repudiated by the county, gives of action for a breach of his contract. If, however, ver at all, it is manifest that, under no circumstances, ount claimed be recovered by him, and that the judg1 court for the total is erroneous. Provision is made or certain expenses to be met by Stevens, and a recov

for a breach of the contract would necessarily take nto account in a determination of the amount of damrvations already made with reference to the $4,198.14 ance of the claim of $7,225, except that this balance, ny time been approved by the board of revenue, must y a preponderance of the evidence in favor of the de

the county must show that the $4,198.14 arose out of t was fraudulently made, or that the contract was not Stevens, the ordinary burdens of a plaintiff as to the mount must be upon the defendant. m on the Injunction Bond.-Claim for damages on ond cannot be set up as a counterclaim. It does not e transaction which is the subject matter of the suit, of the suit itself. Nor is it an independent cause of ich an equity suit could be based. But the injunction in this case, and is an incident of the case, and in this nay be given upon it, if it be shown that damages have - are obligees of the bond other than defendant the Falls on Company, W. H. Stevens, and W. H. Johnson. no recovery on the bond without these being parties, fact that, having been parties, any claim either of ve had has been settled by the agreement as the result were dismissed from the suit. As to the surety, the "ease v. Rathbun, Jones Eng. Co., 243 U. S. 273, 37 1 L. Ed. 715, Ann. Cas. 1918C, 1147, would seem to fendant asserts that the allegations with reference to he injunction bond are not denied. Issue is formally 1 any event, the items of damages, consisting of atnd other items of expenses incident to the litigation of ot such as are allowable in a federal court. The judgurt as to this claim should be affirmed. or Damages for Libel.-Defendant's counterclaim for el is based upon the allegations of the pleadings in this

a counterclaim arising out of the transaction which is tter of the suit. The suit is a matter distinct from the

upon which it is based. nages for libel may be predicated upon pleadings. In , to sustain such a case, it would have to appear from the

pleadings of the plaintiff that the allegations complained of were maliciously made, were without foundation in fact, and that the pleader had knowledge of the fact that the allegations were lacking in truth. The evidence in this case is entirely insufficient to maintain the counterclaim. The statements of fact in the pleadings complained of are apparently, as to most matters, true. Where the evidence does not make it appear that they are true, there is nothing to indicate that the pleader had knowledge of the lack of truth. The conclusions of fact, which constitute a large part of the pleadings, are not without warrant; and, if they were, there is nothing to indicate that the conclusions were not the bona fide conclusions of the pleader. The evidence in this case would not have warranted a judgment for damages.

[7] This claim has been discussed upon the assumption that a good cause of action could be stated against a county for libel. A county is a governmental subdivision of the state, with very limited and strictly defined powers. No county has been given the authority to commit a libel, nor given the power to authorize any one to commit a libel for it. It is a character of tort for which a county cannot be held.

The judgment of the trial judge with reference to the claim for damages for libel may be sustained upon either of these grounds: (1) There was no proper presentation of the claim to the board of revenue. (2) It was not a matter upon which a counterclaim could be predicated. (3) The evidence would not, in any event, have sustained a judgment. (4) A county cannot be held for damages for libel.

Provisions of the Decree as to Payment, etc. The decree gives directions to the county board of revenue and other officers of the county as to the auditing, allowance, registration, and payment of the claim (paragraphs 4, 5, and 6). Where judgment has been given against a county, the court may, in the case in which it is rendered, make such executory orders and decrees as may be necessary to make the judgment effective; but, if the execution of the judgment requires orders to or against officers of the county, the individuals who are these officers must be brought into court. None of the officers of Covington county has been made a party to this suit, and the judgment as to each of them is ineffective and erroneous.

The judgment is affirmed as to the claim for damages for libel and upon the injunction bond. The judgment is in other respects reversed, and the cause is remanded for another trial upon the issues presented by the pleadings with reference to the contract of the county with Stevens, and his claims arising out of the contract.

In part affirmed, and reversed in part.

(256 F.)

ourt of Appeals, Third Circuit. February 25, 1919.)

Nos. 2361, 2362.

roperty by both parties in replevin puts in issue plaintiff's
imposes upon it the burden of proving its right to the im-
xclusive possession of all the property.


under which plaintiff delivered certain parts of steel shells which was to furnish the necessary work and materials for on, construed, and held to give defendant a special property upon which it had expended work and materials, and the possession until inspected and accepted by plaintiff.

r defendant in replevin for a sum of money only, where the
ken by plaintiff on the writ, must be construed as for the
goods, where there was no evidence of damages for caption
, and is equally good at common law and under Act Pa.

(P. L. 90) $ 7.

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for unfinished artillery shells, delivered by plaintiff to decontract for completion, upon which defendant had expendmaterial, but which were unfinished and without market laintiff broke the contract and replevied them, defendant value of its interest by proving the cost of its labor and maaddition what would be a reasonable and ordinary profit

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urer, working on material furnished by plaintiff when such
replevied, held not estopped to assert a property right therein
at it had previously claimed a lien.
ld not to sustain the claim of a defendant in replevin to a
operty replevied.
goods is not what they cost their owner; it is what they
him or to others.
- For other definitions, see Words and Phrases, First and
- Value.]

ne District Court of the United States for the Eastern
sylvania; W. H. Seward Thompson, Judge.
at law by the Agency of Canadian Car & Foundry
ed, against the Pennsylvania Iron Works Company.
ents, plaintiff brings error. First judgment affirmed,

ans, Robert J. Doads, and Edwin W. Smith, all of (Reed, Smith, Shaw & Beal, of Pittsburgh, Pa., and ee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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