San Patricio County v. McClane, 44 Tex. 392

San Patricio County v. McClane

44 Tex. 392 | Tex. | 1876

Ireland, Associate Justice.

The plea of privilege to be *396sued in San Patricio county does not appear to have been well taken. If the Governor, in fact, issued the proclamation attaching San Patricio to Nueces county for judicial purposes, the court could not inquire into the fact as to how the Governor obtained the information upon which he acted. The Constitution confers the power, and his action is con-elusive upon the courts. (Constitution, art. 12, sec. 24.)

The defendant plead many matters in defense, one of which was that the contract between Murphy, the original payee of the debt sued on, and San Patricio county was that the debt was to be paid in Confederate money, and that the contract was therefore void, and we are referred to the decisions of our predecessors to sustain this position.

The position of the late incumbents of this bench was that Confederate-money contracts were virtually in aid of what they termed the “rebellion,” and therefore void. This view of the law was originally supposed to be in harmony with the views of those public servants controlling the affairs of the United States. Such, however, is not the view taken of these contracts by the judiciary department of that Government, and we have too much respect for that distinguished tribunal to differ with it on this question, and we adopt what we understand to be the rule of that court in preference to that of our predecessors, and hold that such contracts are not void, hut that under a proper state of pleading and proof the party may recover the real consideration for the contract, or what the work for which such obligation may have been given was actually worth. To this extent the defendant’s plea of Confederate money is a good plea, but not to the extent of rendering the contract void.

The defendant set up by way of exceptions the fact that the claims sued on had never been presented to the treasurer of San Patricio county for registration, and that they were not in fact registered and numbered, as required by the 4tb section of the act of 1870, on the subject of county *397liabilities. (Paschal’s Dig., art. 6044.) That act was then in full force, and it will be seen that it prohibits the county treasurer from paying any claim against a county except according to number and seniority of presentation. This being a prerequisite to payment, the holder could not lawfully demand payment without complying with the law, nor is it believed that he could maintain a suit without such registration; and in overruling defendant’s plea setting up this fact there was error. This will require a reversal of the judgment; but as the case will go back, and there may be further litigation with reference to the demands sued on, it is proper that we should notice another point in the case.

The plaintiff set up the fact that he was an innocent holder of the claims for a valuable consideration without notice.

The court below charged the jury that if the claims came into the hands of the plaintiff in the ordinary course of business as an innocent holder, and that they had not been paid, they would find for the plaintiff. This would indicate that the court treated the certificates of indebtedness or orders on the county treasurer as commercial, negotiable paper. It is true that a transfer of such paper would be treated in equity as a transfer of the debt of which the orders were evidences, but these orders are not, in any proper view, commercial paper, transferable by delivery, or such paper as would prevent the debtor from setting up any defense he might have against the original holder or creditor. The papers sued upon were simply directions to the treasurer to pay the amount of money called for, and could be used in evidence against the county in case it denied the indebtedness.

County courts cannot, without special authority, issue commercial paper so as to charge the county, or deprive the county of any defense it might have against the original creditor.

*398It is certainly the duty of the defendant to make provision to pay and to discharge its indebtedness, and because of the difficulties in the way of the citizen in compelling payment to be the more prompt; and should the county fail to do this, upon the amount due being ascertained, the plaintiff is not without a remedy.

The judgment is reversed and the cause remanded.

Reversed and remanded.