Board of Commissioners v. Day

19 Ind. 450

• Court: Indiana Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Perkins, J.

Cook Day sued The Board of Commissioners of Floyd county, on divers county orders, drawn by the auditor of Floyd, county, on the treasurer of the county, and in favor of the persons named in said orders, “ or bearer.” The treasurer had indorsed upon the orders that they had been presented for payment, etc.

Copies of the orders did not accompany the complaint, but were handed to the defendant’s attorneys, and the Court allowed them to be filed by the plaintiff by way of amendment, without subjecting him to a continuance on account of it.

The orders were accurately described in the complaint, and were in the hands of the defendant’s attorneys, and we do not see how the failure to file them with the complaint prejudiced the defendant in this case; and the statute is, that, if the Court sustain a demurrer, the plaintiff may amend by the payment of the costs occasioned thereby. 2 G. & H., p. 81, sec. 53; and p. 198, sec. 323.

No question was raised as to parties.

The defendant answered the general denial, without oath.

Trial by the Court; judgment for the plaintiff.

The orders were given in evidence.

The county of Floyd is a corporation, with power to contract debts. The debts evidenced' by orders, such ^,s those sued on in this case, do not stand on the footing of those contracted under a special conditional grant of power. See The People v. Smead, 24 N. Y. Court of Appeals, 114.

The auditor of the county is authorized by law to audit claims against the county, and to draw his warrant or order upon the treasurer for their payment. Such order, when drawn, is, in legal effect, the promissory nóte of the county, and is presumed to be upon a consideration, for it is assignable. A corporation is a person. The Indiana and Illinois Central Railway Company v. Davis, at this term. 1 G. & H., p. 122. 2 Id. 385, 658.

Thomas L. Smith and M. C. Kerr, for the appellant. G. V. Howh and B. M. Weir, for the appellee.

The officer, in the discharge of his general powers, will be presumed to have done his duty, in drawing a warrant or order, till the contrary appears; and, hence, such order makes a prima facie cause of action. Hamilton v. The Newcastle, etc., 9 Ind. 359.

Impeachment must come from the defendant. Smead v. The Indianapolis, etc., 11 Ind. 104.

The insertion of the words “or bearer,” in the orders, was useless and harmless.

Per Curiam.

The judgment is affirmed, with one per cent, damages and costs.