24 Pa. Super. 487 | Pa. Super. Ct. | 1904
Opinion by
An order, dated December 11,1902, signed by the president and clerk of the council of the borough of Swoyersville, and directed to the treasurer, was issued to P. A. McLaughlin, M. D., who in March, 1903, presented it to the treasurer for payment and was refused. A petition for a mandamus was filed, and after a hearing on petition, answer, and demurrer, the court directed the writ to issue as prayed for. The answer filed specifically states that when the respondent assumed the duties of his office on March 1, 1903, he was notified by the retiring-
While it was a formal acknowledgment by the duly constituted authorities, that, at the time of its date, the sum named was due and payable to Dr. McLaughlin, it has been held that an action does not lie on such a paper; that it is neither a bill, note, check nor contract; nor is it a satisfaction of the original indebtedness; nor a negotiable instrument upon which the holder may sue in his own name: Dyer v. Covington Township, 19 Pa. 200 ; Allison v. Juniata County, 50 Pa. 351; East Union Township v. Ryan, 86 Pa. 459; Maneval v. Jackson Township, 141 Pa. 426. The allowance of a claim by granting an order therefor is not a final and conclusive adjudication so as to conclude the municipality, but it may set up the defense of ultra vires, or fraud, or want or failure of consideration: 1 Dillon on Mun. Corps, section 504. Even a defense of the statute of limitations cannot be rendered ineffective by talcing up an outlawed order and issuing a new one in its stead: Snyder Township v. Bovaird, 122 Pa. 442. The- facts set forth in the second and third paragraphs of the answer justified the treasurer in réfus-,
■ The judgment is reversed.