delivered the opinion of the Court.
This is an action for goods sold and delivered to the county by Francis E. Murphy in his lifetime — the appellee being his administrator. It is unnecessary to refer to the pleadings, as upon the trial it was stipulated, in' effect, that the cause should be determined upon the merits, as they might appear from the evidence.
The evidence on the part of the appellee which we regard as controlling the case, is that bills for the goods were rendered to the county by the Chicago Pharmaceutical Company; that Murphy was conducting business under that name; that in the regular order of business, in the mode adopted by the county board, appropriate committees reported that having had the bills under advisement they recommended the payment of them, and thereupon the county board, at regular sessions of the board, adopted such reports, and ordered that the bills be paid.
Among the powers of the county board was “ to examine and settle all accounts against the county.” Third clause, Sec. 25, Ch. 34, Counties, R. S. 1874. The law contemplated that upon such orders of the county board, the clerk and treasurer of the county would act. Oh. 35 and 36, R. S. 1874. With such orders of the county board, no independent proof of the delivery of the goods, or of quantities or prices was necessary. The orders had, at least, all the effect of an account stated between individuals. “ Such an audit, when the auditors are not fraudulently imposed on and act within their jurisdiction, is undoubtedly conclusive, until in some way reversed, as to the liability of the city for the amount audited, and it can not be collaterally overhauled or attacked. But it is conclusive for nothing more, and this is true of every audit made by county supervisors and town boards of auditors. When the auditors honestly allow a claim, acting within their jurisdiction, and no fraud has been practiced upon them in procuring the allowance, the liability of the municipality is fixed, and the claim is no longer subject to dispute.” These sentences are quoted from the opinion of the court in Nelson v. Mayor, etc., of New York, 131 N. Y. 4, where it is true they were obiter, but they express the rule of law accurately. The rule was followed by the Supreme Court in Fitzgerald v. Harms, 92 Ill. 372, and recognized by this court in Lundberg v. Boldenwick, 35 Ill. App. 79.
Such was the rule enforced in Mayor v. Wright, 2 Porter (Ala.) 230; Brown v. Inhabitants, etc., 79 Maine, 305; Hall v. Inhabitants, etc., 116 Mass. 172; all of which also deny the power of the municipality to rescind the audit at a subsequent meeting. This last position is, so far as we are advised, nowhere denied, unless in Morth Carolina. See Dey v. Lee, 4 Jones’ Law, 238. Perhaps by virtue of a rule of the board, shown by the record, providing that action of the board at one meeting might be reconsidered at the next, the board might rescind the audit at the next meeting; but the attempted rescission here, was after the lapse of many months, during which meetings were held each week.
The prohibition in Ch. 146 a, B. S., against warrants when there is no money in the treasury, has no relation to auditing accounts, nor is there any evidence of an excess of indebtedness by the county in violation of Sec. 12, Art. 9, of the constitution.
The record does show that Murphy was in the service of the county, and the goods which he furnished under his business name, as a company, he also received for the county. Certainly that has a bad aspect, but there is in the record the testimony of a witness, also a servant of the county, and to whom Murphy was subordinate, that he examined the goods as received, and found that all that were charged were received, and charged at low prices.
The finding of the court, trying the cause without a jury, concludes us upon the question of fraud. The action of the board ordering the payment of the bills was all more than five years before the commencement of this suit; but if the appellee has any case, it is upon the allowance of, and the orders for the payment of, his accounts rendered to the county board.
These matters are all in writing, and if there be any evidence of indebtedness, it is in writing, to which ten years is the limitation pnder Sec. 16, Ch. 83, E. S. 1872.
On the whole case the judgment of the Circuit Court for the appellee is affirmed.