Mayor of Tuskaloosa v. Lacy , 3 Ala. 618 ( 1842 )

GOLDTHWAITE, J.

The ordinance of the corporation was not the subject of oyer in this case, because the action is on the bond, and it is of that alone the defendants were author-ised to crave oyer. 1 Chitty’s Plead. 416, 418.

2. When, however, the ordinance is stricken from the demurrer, it remains as tendering an igs.ue of law upon the validity of the declaration, and we think it very clear that no sufficient breach is assigned. The condition of the bond is, that inasmuch as the defendant, Lacy, had Jjean appointed Treasurer, under a certain ordinance, he was to discharge the duties required of him under the said ordinance. Now, it nowhere appears from any part of the declaration, what were the duties imposed by this ordinance, yrhich was in effect, the law of the condition of the bond. ' .■

The plaintiffs might have declared on the penal part of the bond, and thus have forced the defendants to crave oyer of its condition, but then they would have been met with a general plea of performance, which in effect would have compelled the plaintiffs to have assigned breaches, not upon the bond, because that refers to the ordinance as a part of its condition, but directly upon the ordinance. Plumer v. Ross, 5 Taunt. 386; 1 Saund. 117, note 1; Stothert v. Goodfellow, 1 N. & M. 262.

3. We might here rest this case, as the Conclusion already arrived at, is sufficient to sustain the judgment of the Court be-lowybút-as the main question has been very; fully.considered, w'e'think i't best to declare our opinion on that likewise.-'

If the ordinance of the corporation be- as it-is' set out in this record, no recovery can be had on any bond entered into under it. And ¡this for the yery-sufficient reason, that the condition ofihe bond involves a direct violation of a public statute.

The act of 1830, -provides, if any person or persons, partnership or association of individuals, shall sign, seal of make any promissory note, bill of.exchange, either foreign or domestic, or order drawn upon an.y person or persons,-bill- single or penal, for a-less sum than three dollars, and issue and put forth the same as a change bill, or to make, it subserve "thp common purposes of money, he, she or they, so offending, shall be deemed guilty of a misdemeanor, and upon conviction thereof, upon presentment or indictment, shall be dined in a .sum not less than .'fifty, nor more than two hundred dollars, at the discretion of the. jury, by which such offender or offenders may be-tried. Aikin’s Digest, 110, § 52. .

-■The second section-of the same act, also makes it highly penal to pass off, circulate, or aid in the circulation of any-such note or instrument in writing.

-It.is. true,--that when this Digest was compiled-, a previous act passed in 181-8, was permitted to remain in the statute book, and. -that this provided that -all such notes or bills under one dollar, should be deemed and taken to bear interest at the rate of.one hundred per cent, per annum. Ib. 236, § 4.

It is unnecessary now to determine, whether-.this act is,or is not repealed by the subsequent statute, for if it is conceded to be- in force, it will only operate,, as -an additional penalty upon those who actually-emit such unlawful paper for circulation as money. Under no circumstances does it furnish any warrant to sustain a contract connected ■ with the acts denounced, aud intended to be punished by the act of 1830.

We deem-it unnecessary to-go into a minute examination qf the duties imposed on the Treasurer by the-,ordinance of the corporation, because it is apparent .on its face, .that it provides for nothing but a violation of the then existing laws, and no bqnd or any other contract gro wing out of it, ■ can be enforced.

. The principle which must govern this case, has too. often received the consideration of this Court, to require us-now to '•illustrate it. by authority. Meggison v. Hill & Holden, 2 Stew. art, 175. See, also, Amory v. Merryweather, 2 B. & C. 573.

The judgment of the County Court is affirmed;.