Pelton v. Supervisors of Crawford County

10 Wis. 69 | Wis. | 1859

By the Court,

Cole, J.

We have decided at the present term, in the case of Savage vs. The Board of Supervisors of Crawford County, supra 49, that an action might be maintained mpon a county order after the same had been presented to the county treasurer, and payment by him refused, for want of funds. The order in this case was issued in 1843, and in that year presented to the county treasurer, and payment refused. The respondent commenced his action upon the order in 1858, and the county, among other defences, has set up the statute of limitations. . We are of the opinion that the statute bars a recovery. Section 14, chap. 127, R. S., 1849, declares that “the following actions shall be commenced within six years next after the cause of action shall accrue, and not afterwards.” 1. “All actions of debt founded upon any contract or liability not under seal, except,” &c. 4. “All actions of assumpsit, or on the case, founded on any .contract or liability expressed or implied.” Under the old practice, we suppose the proper form of action upon a county order would be assumpsit, and subdivision 4 of the section would apply to it.

But it was insisted by the counsel for the respondent, that the statute of limitations could not apply to an action brought upon a county order, for several reasons, which he gave; none of which, however, was satisfactory to our minds. We shall not notice these reasons in detail, but our observations will substantially dispose of them. The county order in this case is signed by two commissioners of the county board, attested by the clerk, and is in the usual form of such instruments. The order is unquestionably an evidence of 'a county liability, drawn by certain county officers, authorized by law to draw the same, upon another county officer directing him to pay the amount of money therein specified, out of any money in the treasury not otherwise appropriated. That an action upon it is founded upon the evidence of a county liability, or county indebtedness, is very clear. Tyell vs. The Supervisors of La Pier County, 6 McLean, 446.

It is analagous to a check drawn by an individual upon a bank, for the payment of money; though probably the rules of,commercial paper do not apply to a county order ; still, it is the evidence of a county liability, and an action upon it must be commenced within the time required by law.

It was suggested that a county order, under the laws of the State, was in the nature of a judgment, and might be regarded as a speciality; or was like a promissory note, signed in the presence of an attesting witness, &c. It would hardly be correct to say, that a county order was a judgment, in the peculiar and restrictive sense in which that word is used in the statute, or that it is a promissory or bank note. County , orders constitute a form of indebtedness well known to the laws of the state; and it is very convenient for the board of supervisors, upon settling and allowing charges against the county, to evidence the indebtedness in this way. No advantage is gained by likening them to a judgment, speciality, or promissory note, although they may possess some of the characters, and perform some of the functions of each. We think they are a peculiar form of county indebtedness, and that the statute of limitations runs upon them, as upon a simple contract. Although an action might be barred upon them in six years, still, orders are available to the amount of their face, in the payment of county taxes, under the provisions of the. statute; so that though an action will not lie upon an order upon which the statute of limitations has run, still it is not lost to the holder thereof.

• From the view taken of this case, it becomes unnecessary to consider whether a county order issued before the adoption of the Revised Statutes of 1850, draws interest or not.

The judgment of the Circuit Court is reversed.