The Montgomery advertiser., 1902-07-08

much money in the bank to his credit.
 The fact that no money was actually re- ceived, that the drawer had no money Tn the bank or, for that matter, that the bank giving credit had no money with which to pay the amount, will not, in any wise, save in exceptional cases of fraud and the like. change the legal ef- feet which the law ascribes to the trans action as a payment, collection and de- posit of money. Why is this? Because that result is inevitable from what the parties, to the transaction intended and did. It completely carries out what they wish to do; to put money in the hands of the owner of the cheek; to allow him to put that money into the bank again if he so desires. Such transactions are common, and result from the necessities of modern methods of transacting com mercial business. do not question that sthis is the true rule everywhere, even as to public funds, where the law per- m;ts the taking of checks by its officers, and the placing of public funds on general oeposit in bank. If a like result following here under the facts on what principle is it worked out? How Is the transaction to be treated, as receipt, collection of money of the coun- ty of Mbntgomery" by it's treasurer under the peculiar provisions of our statutes, forbidding the transactions relied on.
 The pleas show that no money was actually received, and if the transaction can amount to a receipt and deposit of money by the treasurer,sit must be be- cause that was the intention of the parties to the contract made by the transaction. coupled with the further in- dispensable element, that the transaction be such. that the law would permit the contract to be made. and recognizes ard enforces the rights growing out ot It. II the transaction~as a contract was forbid- den by the law and denounced under a
 penalty, how can it be said to be- ie-
 ceipt of money by the treasurer or a
 deposit of money by the treasurer when no money, was, in fact, used when the
 law will not permit the making of the
 contract, or enforce it, or any right de-
 pendent on it?
 The law said to the treasurer, you
 have no authority to take a check instead
 of money. You are forbidden to receive checks in payment of debts due the coun-
 ty It also said to the treasurer and the
 bank both, if the tax collector has money and he deposits it with you on general deposit and you use the money in any
 way, you and he are guilty Of an un-
 lawful transaction, which. involving the
 amount here concerned, is a felony. It is an memorable rule of law, that 1t will
 not recognize or enforce directly CT in
 directly any right growing out Of such
 a transaction.
 Certainly, when Cochran got the check,
 which is not money. and which he was not authorized to receive, he did not receive any money, or collect any money. At what moment of time was the check he received converted into money, and how? Certainly, as long as he held the check, 1t cannot be said that he received any money, and if he never received aLy- thing for the check except credit on the books of the bank which drew the check, that was certainly. not the receipt Of
 money; when the bank had no right to | give the credit. and the treasurer had no right to take such credit for any
 property of the county, he surrendered to | the bank. No money having been | actually paid on the check. repeat. how | and by what means. was 1t converted iuto money? Most certainly, only by the ef- | feet to be accorded to the contract made | by the surrender of the check and the | taking of credit therefor, on the books of the bank. If this transaction had never
 happened, and Cochran still retained the check, counsel for plaintiff would not con- | tend that Cochran had received money when he received the check, or exchanged
 it tor credit, and yet the law gays that | this transaction never happened. for tt | must be treated as a nullity, conferring | no right upon anybody growing cut of l 1t. How is the receipt and collection oi | money in the eye of the law to be worked | out, except by imparting legal effect and | validity to a transaction which Ike law
 denounces, and which it says snail have no effect and validity? The whole case
 of the plaintiff. turns upon the theory I hNF lE transaction which he converted, and this
 in turn hinges upon giving validity and | force to the rights growing out of the | transaction, which the law repudiatss and | condemns Without that transaction l there is assuredly no semblance of toun- l dation for claiming that Cochran received money of the county" which he failed tc | safely keep. 1t matters not what the parties intended by the transaction; fer | the law says their intent shall not pre-
 vail and that no right shall spring out 1 of that intent or any act done under it. ! To treat the transaction as a receipt col
 lection and conversion of money by l Cochran, is to enforce a contract at- tempted to be made in violation of law, al the instance of the county. It is need. | less to cite authorities on this point | They are unbroken, in every English | speaking country at least, that where g l contract is intended to accomplish some | thing which the law punishes as a crime | of which under pain of the penitahtiar | the courts are forbidden to recognize the
 contract or any rights growing out oi
 it, or to enfore it directly or in-
 directly. The Board of Revenue
 is a tribunal of limited authori. l ty It could not ratify the trans
 action. No power short of the Legisla- | ture could do this, and unless there is
 such ratification, the courts must treat | the contract as though it had never been If Cochran had, in fact, received coun- | ty money and deposited 1t in bank, of | course the county could recover 1t. 1t would not rely on the contract of deposit which was a conversion, but would have the right to repudiate that, and could
 recover the money because the collector had no authority to deposit the | county money in that way, and had converted 1t. That is not this
 case. The county does not seek to repudi- ate this transaction, but it insists that it | be enforced in its favor, so as to create
 the receipt, payment or conversion of
 money, in the eye of the law, in order l that Cochran can be said to have re- | ceived money for failure to safely keep
 which he and his sureties are liable.
 While the law may not be generous in
 such matters. 1t stcrnly exacts the sure- ! ties rights, and never binds him by fiction | contrary to the law itself. It makes not a i particle of difference that the county was
 not party to the contract attempted c