People ex rel. Martin v. Board of Auditors

5 Mich. 223, 1858 Mich. LEXIS 36

Opinion

The Chief Justice:

The answer in this case is clearly insufficient. The relator was entitled to the warrant of the board, upon the county treasurer, for the amount alio wed. him, and it is no sufficient reply to his application therefor that the board made out the warrant, but some one else has taken it away, and obtained payment upon it. They must show its delivery to him, or what is equivalent.

An order for the payment of money, as this was, or a promissory note, or any other such chose in action, is not the subject of levy on execution; and permitting the constable to take away the warrant, can only be regarded as the mere voluntary act of the board. Any debtor might, with the same propriety, take upon himself to satisfy his indebtedness by paying the amount over to the creditor of his creditor, without the consent of the latter. A peremptory mandamus must issue.

Mr. JEddie asked for costs.

By the Court:

The respondents in this case are a public body, and we can not say they have acted in bad faith. We will not, therefore, give costs.