MISCELLANEOUS. - It is said in Wheeler v. Sage, 1 Wall. 518, 529, to be a fundamental principle that a party who seeks relief in equity must be able to show that there has been honesty and fair dealing, since the maxim in pari delicto otherwise applies. Therefore, where one becomes voluntarily a party to an obligation intentionally made in fraud of the law, and then asks in a court of equity to be relieved from its fulfillment, "the condign and appropriate answer to such a prayer from such a tribunal is this: that, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto; you cannot be admitted here to plead your own demerits; precisely, therefore, in the position in which you have placed yourself, in that position we must leave you": Creath's Adm'r v. Sims, 5 How. 192, 204. It is determined in Illinois that although the original conveyance is fraudulent, yet a reconveyance made by the fraudulent grantee to his grantor, in pursuance of the original agreement, is not tainted with fraud, but is valid, and that notes executed at the time of such reconveyance, pursuant to a verbal agreement made during the original fraudulent transaction, may be enforced: Second National Bank v. Brady, 96 Ill. 498. And if personal property bo transferred by way of pledge or security, the party so transferring, or those claiming under him, may redeem the same notwithstanding the transfer is fraudulent as to creditors: Jones v. Rahilly, 16 Minn. 320. Or where the grantor subsequently pays his debts, and is relieved therefrom by a discharge in bankruptcy, and a subsequent agreement is entered into by which the grantor surrenders to the grantee the notes given for the property, and in consideration thereof the latter surrenders all his right, title, and interest in the property, and the deed is to be canceled by agreement; here such original transfer is purged of the fraud, and the subsequent agrement will be enforced: Songer v. Partridge, 107 Ill. 529, 534; and if the deed is not in fact executed, no property is conveyed, and the title remains in the grantor: Parkhurst v. McGraw, 24 Miss. 134, 139.

So where the fraudulent grantee of land takes any steps or does any act subsequent to the conveyance in the performance of his moral duty to restore the property, such acts will be favorably considered by a court of equity: White v. Brocaw, 14 Ohio St. 339, 341. As bearing directly upon the question of recriminatory fraud, it was said in Lord v. Doyle, 1 Cliff. 453, 458, that "it would be an encouragement to fraud to hold that the wrongful act of one party to a suit is a justification to another wrongful act on the part of the other party of equal magnitude and immorality. Frauds are forbidden in equity, and when committed, they cannot be set off one against another, but each separate transaction must stand or fall by itself." In applying the rule governing in this class of cases, it is held that a bad motive is not alone sufficient; there must be an illegal act, since if such conveyance is made to avoid a debt where none exists, or the property conveyed is of a character which could not be subjected by the creditor, and a contract otherwise valid is entered into to treat the conveyance as a mortgage, or providing for a reconveyance by the grantee, the latter will not be permitted, in an action brought to enforce such agreement, to set up the defense alone that the grantor intended to defraud his creditors by such conveyance: O'Conner v. Ward, 60 Miss. 1025, 1037, citing Denman v. Denman, 4 Ala. 521; Brady v. Ellison, 2 Hayw. 348; Smith v. Bruser, 2 Id. 296; Boyd v. De la Montaigne, 73 N. Y. 498; 29 Am. Rep. 197.

COLEMAN v. PIKE COUNTY.

[83 ALABAMA, $26.]

DEMURRER TO ENTIRE COMPLAINT IN ACTION ON OFFICIAL BOND IS PROPERLY OVERRULED, where, several breaches of the bond being assigned, some of them are sufficiently certain and definite.

PROOF OF EXECUTION OF BOND WHICH IS FOUNDATION OF SUrr is not required under provision of the Alabama Code, section 3036, unless the execution is denied by a verified plea.

RECEIPT IN FORM OF IO U, GIVEN BY COUNTY TREASURER TO TAX COLLECTOR, IS ADMISSIBLE as evidence against the sureties of the treasurer, since deceased, and it is competent to show, by parol evidence, that the instrument was intended as a receipt for so much of the county tax, to be accounted for in a settlement with the collector at the end of the month.

RULE THAT PAROL EVIDENCE CANNOT BE ADMITTED TO VARY, EXPLAIN, OR CONTRADICT WRITING is confined to the parties to the writing; and when it comes in question collaterally between one of the parties and others, neither party is estopped to contradict or explain it. WHEN COUNTY TREASURER RECEIVES MONEYS IN HIS OFFICIAL CAPACITY, AS COUNTY TAXES, HE AND HIS SURETIES ARE ESTOPPED TO DENY that they are the moneys of the county, for the lawful disbursement of which he is responsible on his official bond, whatever the character of the papers given by him to the collector as representing the amounts so received.

HILE BOOKS AND ENTRIES MADE BY COUNTY TREASURER, OR HIS AGENT, ARE PRIMA FACIE evidence against him and his sureties, yet entries made by the agent after the termination of his agency by the death of the treasurer are not binding on him or his sureties, and are not admissible ia evidence against them.

IN ACTION AGAINST SURETIES ON OFFICIAL BOND OF DECEASED COUNTY TREASURER, seeking to charge them with a default of their principal, the tax collector, and the probate judge who acted as the agent of the treasurer in attending to his official duties, may each testify to their transactions with him.

ACTION brought in the name of Pike County against the defendants, as sureties on the official bond of one Tyler, deceased, as treasurer of said county. The defendants demurred to the complaint, and the demurrer was overruled. The rulings of the court on the evidence, etc., assigned as error by the defendants, sufficiently appear in the opinion.

Gardner and Wiley, and M. N. Carlisle, for the appellants. Parks and Son, contra.

By Court, CLOPTON, J. 1. There are several breaches of the bond sued on assigned in the complaint, some of which are too general, while others, relating to the illegal use or expenditure of the money of the county, and the failure to keep and disburse it according to law, are sufficiently certain

und definite. The demurrer goes to the entire complaint, each assignment of a breach being specified as cause of demurrer. Some of the assignments being sufficient, the demurrer was properly overruled: Williamson v. Wolf, 37 Ala. 298.

2. The complaint alleges that the bond, which is set forth therein, and is the foundation of the suit, was executed by the defendants. Under the statute, the bond must be received as evidence without proof of execution, unless the execution is denied by a verified plea: Code, sec. 3036; Johnson v. Caffey, 59 Ala. 331.

3. The material question arises on the admission in evidence of two papers given by the county treasurer to the tax collector, and on the ruling of the court in reference to the liability of the sureties on his official bond for the amounts of the same. One of these papers is in the following form: "I O U four hundred and nineteen dollars, November 28, 1885. J. F. Tyler, C. T." The other is for sixteen hundred dollars, similar in form, except as to date and amount. It appears from the evidence of the collector that the treasurer collected some taxes as his agent, which he stated he had used in paying court expenses. The first paper was given for the amount of taxes so collected. The second was given for taxes collected by the collector, which he let the treasurer have to pay some claims against the county. The treasurer received these sums as so much of the county tax, to be accounted for in a settlement with the collector at the end of the month, and the papers were intended as receipts. It is first objected that the papers are the individual obligations of the treasurer, and that parol evidence is inadmissible to show that they were to have a different legal effect. The rule that parol evidence cannot be admitted to vary, explain, or contradict a writing, is confined to the parties to the writing, and when it comes in question collaterally between one of the parties and others, neither party is estopped to contradict or explain it; and as between the parties it is admissible to show that a particular mode of payment was agreed on: Venable v. Thompson, 11 Ala. 147; Murchie v. Cook, 1 Id. 41.

4. It further appears that Hilliard, the judge of probate, who was requested by the treasurer to attend to his official duties for him, made two settlements with the collector,-one before and one after the death of the treasurer, and in

one or the other of these settlements he received these two papers from the collector, as evidencing the payments of so much of the county taxes to the treasurer. The evidence leaves in doubt in which settlement he took the papers. This was an inference to be drawn by the jury. If they were accepted in the settlement before the death of the treasurer, the transaction was within the scope of Hilliard's authority as agent, and was binding on the treasurer. The instructions relating to this matter, requested by the defendant, were to the effect that the sureties were not liable for the amounts represented by the papers under any circumstances; and, in the light of the evidence, were properly refused. Furthermore, if the treasurer received the moneys in his official capacity, as county taxes, he and his sureties are estopped to deny that they are the moneys of the county, for the lawful disbursement of which he is responsible on his official bond, whatever may be the character of the papers given by him to the collector as representing the amounts so received: Perryman v. Greenville, 51 Ala. 507.

5. While the books and entries made by the treasurer or his agent are prima facie evidence against him, entries made by the agent after the termination of his agency by the death of the treasurer are not binding on him or his sureties, and not admissible in evidence against them. The court erred in admitting in evidence, against the objections of the defendants, the entry shown to have been made by Hilliard after the death of the treasurer. The error was not cured by the instruction that the defendants could relieve themselves from liability by explaining the entry. The effect was, to make such entry prima facie evidence against them, and fix on them the burden of explanation. If the accounts of the treasurer were so mingled in the different entries as to require separation, the entry after the death of the treasurer might have been used for this purpose; but the jury should have been instructed that they could use it for this purpose alone, and not to regard it as evidence.

6. The tax collector and Hilliard were competent witnesses to testify to transactions with the deceased treasurer: Garret v. Trabue, Davis, & Co., 82 Ala. 227.

Reversed and remanded.

RULE FORBIDDING USE OF PAROL EVIDENCE TO CONTRADICT & writing does not apply to a third person whose rights are paramount to such writing: Tyson v. Post, 2 Am. St. Rep. 410; and see McMaster v. Ins. Co., 14 Am. Rep. 239.

ADMISSIBILITY OF PAROL EVIDENCE TO EXPLAIN or contradict receipt: Pribble v. Kent, 71 Am. Dec. 327; Henry v. Henry, 71 Id. 354, and note 355; Ashley v. Vischer, 85 Id. 65, and note 69; Stapleton v. King, 11 Am. Rep. 109; De Lavalette v. Wendt, 31 Id. 494.

TIES.

EFFECT OF RECEIPTS OF OFFICERS AS EVIDENCE AGAINST THEIR SURE- The effect to be given to receipts, official reports, entries, or returns made by public officers as evidence against their sureties of the facts thus stated, is a question upon which the adjudications are conflicting. It was held in an early leading case in this country, in a proceeding against a defaulting treasurer and his sureties, that the entries in the books kept by the treasurer were conclusive upon him and his sureties, to the extent that they would not be allowed to show that any sum, which was shown by the entries ought to be in the treasury at any given time, was not there: Baker v. Preston, 1 Gilm. 235, White, J., dissenting. The doctrine of this case was sustained in Indiana, the court holding that the statement of a township trustee, in his annual report to the county board of the amount of money in his hands, was conclusive against the trustee and his sureties in a suit on his official bond: State v. Grammer, 29 Ind. 530; followed in State v. Prather, 44 Id. 287. So in Iowa, in an action on a county treasurer's bond, it was held that the principal's accountings and settlements, made in pursuance of law, are to be deemed conclusive against him and his sureties, in the absence of mistake: Boone County v. Jones, 54 Iowa, 699; 37 Am. Rep. 229; and the doctrine of this case is approved, but the cases distinguished, in State v. Hutchinson, 60 Iowa, 478; Webster County v. Hutchinson, 60 Id. 721. In accord with this doctrine are also the Illinois decisions, holding that where a financial officer is his own successor, his entries of balances in his hands at the expiration of his first term, made in pursuance of legal requirement, are conclusive on himself and his sureties on his bond for the new term: City of Chicago v. Gage, 95 Ill. 593; 35 Am. Rep. 182; Cawley v. People, 95 Ill. 249, 261; Morley v. Town of Metamora, 78 Id. 394; 20 Am. Rep. 266. In a recent case in California, the action was against one Morgan, county treasurer, and the sureties on his official bond. Morgan was both treasurer and tax collector, and there was no doubt that he had misappropriated the county funds. But the point was made on behalf of the sureties that there was no evidence to show that the misappropriation occurred while Morgan was acting as treasurer, and that suit should have been brought against the sureties upon the bond as tax collector. The evidence was, that the auditor had settled with Morgan as tax collector, and gave him a certificate of the amount found due to the county; and the auditor thereupon credited Morgan as tax collector with the amount as paid, and charged him as treasurer with the same amount. The certificate given to Morgan by the auditor was afterwards found in the treasury. This was held to be sufficient, under the statutory provisions relating to the duties of treasurer, auditor, and tax collector, to charge Morgan and his sureties as treasurer. The court said that "in view of the fact that the statute requires the auditor's certificate to accompany the payment into the treasury, the fact that the certificate was found in the treasury gives rise to an inference that the payment accompanied the certificate": Butte County v. Morgan, Sup. Ct. Cal., April, 1888. A sheriff's return to an execution, showing the collection of the money thereon, was held to be conclusive upon the sureties on his official bond in a suit upon such bond, in Bagot v. State, 33 Ind. 262; overruled, however, on this point in Lowry v. State, 64 Id. 421, 427; compare State v. McGee, 7 Ired. 377.

▲ doctrine contrary to that above set forth, and one which is well sus