Thompson v. Rowe

Appeal from the District Court of the Sixth Judicial District, for Sacramento County. ■

On the 22d of December, 1851, Rowe filed his petition, stating that he was owner of warrant No. 177, drawn by the auditor of Sacramento County on the county treasurer, for $1192.70, for work on prison ship, in favour of one Gale, or order, and by him indorsed; dated August 1st, 1850, and noted by the treasurer on the same day, “ not paid, for want of fundsthat the warrant was duly registered, &c.; that on the day of filing the petition, the plaintiff presented the warrant to Rowe, then treasurer, and demanded payment, with interest, which Rowe refused, &e.; that Rowe, at the time of such demand, had in his hands, as treasurer, $10,000; a sum sufficient to redeem this, and all other warrants registered prior thereto; and praying for a mandamus, requiring Rowe to pay, &c., or show cause. The petition was sworn to; and the Court granted an order, requiring Rowe to appear and show cause why he should not pay the warrant. The defendant answered under oath, admitting the demand and refusal to pay, and that he had sufficient funds to pay the warrant in question, and all other warrants registered prior thereto; but setting out an order made by the Court of Sessions, November 8th, 1851, pursuant to the 69th section of the act of March 11th, 1851, concerning courts of justice, &c.; by which order the treasurer was required to pay, on the indebtedness of the county, accrued since May 1st, 1851, one half of all county revenue, collected or to be collected, since said 1st of May, and the whole amount of money in the treasury on that day, in the manner prescribed by law; and setting apart the other half of such revenue for the payment of the indebtedness for the current year, commencing on said 1st of May, as follows: orders drawn between the 1st of May and the 8th of November, for services, the compensation of which was fixed by law, to be paid in full; and where the compensation was not fixed by law, one half the amount to be paid, provided the holders would receive it in full satisfaction;—all orders drawn after the 8th of November, to be paid in full; and further, reciting that the whole revenue collected between the 1st of May and 8th of November, having been applied to prior indebtedness, and requiring the treasurer to apply to the payment of the indebtedness accrued between those dates, and subsequently accruing, enough of the first moneys paid into the treasury to effectuate the foregoing provisions. The defendant then averred the presentation and demand of a large amount of warrants issued since the 1st of May; and his willingness to pay all moneys in his hands, as soon as he could have the judgment of the Court as to the class of warrants he ought to pay. A demurrer to this answer was sustained; and the defendant filed an amendment, stating that the whole revenue paid into the treasury between the 1st of May and 16th of December, 1851, was $36,437.35; that before the last-mentioned day, the predecessor of the defendant paid the whole of that sum on county indebtedness, existing prior to said act of March 11th, 1851; that since the defendant came into office, (December 16th, 1851,) he had received, of the revenue for the current year, $12,375, besides which, there was no money in the treasury; and insisting that none of the moneys received by the defendant were applicable to the plaintiff’s warrant, by reason of said order of the Court of Sessions.