The herald., 1893-05-30
JABEz'S ILLEGAL CHARGES,
Judge Van Dyke Stamps Them
AS Unauthorized.
The Ex-COunty Treasurer Tries to
Hide Behind Time Limitation.
A Decision Rendered Which Settles the
Status of Mr.. Banbury as Regards
the Charges he Made
Against the County.


Jabez Banbury, ex-treasurer of the
county, which will show that defunct
official where he is at.
By the ruling the court directly says
that the ex-tressurer put his hands ille-
gally in the county treasury.
Unfortunately the law seems to sus-
tain Jabez in his plea Of the statute Of
limitations as q bar against the col
lection of a portion of the money he
illegally obtained from the county, and
the court was obliged to sustain the
demurrer as to these claims, which are
over two years old.
This is the suit, to refresh the recol-
lection OF Mr.. Banbury, in which, while
county treasurer, he charged the county
several thousand dollars for expressage
and exchange on moneys sent to Sacrs-
mento, which expresssge and exchange
he never paid, but pocketed the money
just the same.
The suit was brought during the clos
ing days of ex.District Attorney Nc
Lachlan's term of Office, in en- endeavor
to make Mr.. Bsnbury disgorge.
Che complaint was go drawn as to em-
brace two counts. In the first the pay
ment to the defendant by the board OF
supervisors of illegal claims aggregating
$3254 O4 is alleged. The claims were for
the repayment to him OF money alleged
by him to have been paid for express
charges and exchange on state money
sent to Sacramento in settlement by him
as county treasurer with the state be-
tween the first Monday in January, 1889,
and the first Monday in January, 1891.
The second count embraces claims ag-
gregating $952.3S for similar charges
between the first Monday in January,
1901, and December 80, 1892, the date of
the.fling of the complaint.
The complaint alleges that Mr.. Ban
bury never paid out the sums men
toned, and that if he did he was un-
authorized to do go by the board of
supervisors.
The arguments on the demurrer yes
| terday were made by District Attorney
W. A. Ryan for the county, and W. T.
] Wllliama for the defendant. and occu-
pied q portion of the forenoon and a
greater part of the afternoon. They
were very thorough on both sides.
The defendant demurred to the COM
plant first on the ground that it did
not state facts sufficient to constitute
cause OF action, and second that the
claims in the first count are barred by
the statute of limitations, more than
two years having elapsed since their
payment.
The principal points relied on by the
defendants counsel was that the allow
ance of their claims by the board Of
supervisors was an adjudication of the
matter, and had the game force and
effect as judgment. That the super
visors had the authority to allow the
claims and consequently jurisdiction
over them, and that their action could
not be attacked collaterally.
Mr.. Williams contended that even If
| 49, lofo.1oo. MA oo,,, ,,,,;ttod ,,a,;,,.~
in swearing before the supervisors to
these claims, that he had paid the
money; still, on the authority OF the
case of Pico VS.. Cohn. 91st CAL, page
129, even then the court would not va
cate their allowance by the board for
such fraud. That the only fraud for
which a Judgment would be vacated is
fraud intrinsic and collateral to the
case, and not periured testimony in the
case.
Counsel also raised the question of
the statute of limitations and argued
that this was an action for money had
and received, and therefore, under the
provisions of section 1893, code of civil
procedure, all claims more than two
years old were barred.
Mr.. Ryan, for the county, took the
position that these claims were not and
are not legally chargeable against the
county: that therefore the supervisors
,, had no jurisdiction to make the allow
ance, and in consequence they created
no liability against the county, and the
warrants were absolutely void, 30 that
an action can be maintained to recover
the money without first setting aside
the acts of the supervisors.
Further, he contended that even i
! the supervisors had jurisdiction to ALLOW
t the claims, their judgment having
| passed into execution and been paid
became 'functus oficii' or dead writ
Consequently no proceedings to set asid
their allowances were necessary.
r He argued that the warrants, havinI
, been obtained fraudulently, and thu
facts not having been discovered unit
,,-stLs. - ,oort,a y,rior IN the hrinuint