The first error is upon overruling the motion to quash the original notice. A bill of exceptions is taken to this matter, which says the motion was “for the reason, that the notice was not directed to defendant. The notice reads as follows, to wit: (Here insert),” but there is no such motion among the papers; and if there was, such a mode of referring to it, is bad. We shall therefore pass this assignment, and we do it the more readily, because it appears that the defendant was represented by counsel.
*470The second and third assignments must be considered together. The plaintiff’s demurrer to the defendant’s answer, opens to the question of the sufficiency of the plaintiff’s petition and ground of action, and the defendant makes the question.
First, he says, that neither the commissioners nor the county judge, had authority to buy land, to expend the county funds in such a manner. Sufficient does not appear on the papers, under the demurrer, to raise this question properly, for it is stated only, that the land was purchased, and possession taken; and that it was laid out into' town lots, and a part of them were sold. Now, it does not appear that it was not purchased to provide for a court-house, a jail, or other proper public buildings, or for some other legitimate purpose; nor that it may not, in fact, have been taken in payment of a debt due from the vendors. And the court will not presume it to have been obtained for an unlawful purpose, nor in an unlawful manner. We do not intend to intimate an opinion as to the authority, under any other supposed circumstances, but to say only that the point cannot be well made at present.
The second point here made by the defendant is, that the action does not lie, without an averment that there are funds in the county treasury not otherwise appropriated. That an action may be maintained against a county, on its orders, drafts, or warrants, drawn on the treasurer, without going back to the original consideration, is settled by the cases of Brown v. Board of Commissioners of Johnson County, 1 G. Greene, 486, and Steel v. Davis County, 2 Ib. 869. In this part of those decisions we concur, for the practice is convenient, and whatever technical objections to it might exist, on account of the precise nature of the instrument, they are obviated by our statutes relating to instruments and actipns. But the objection is based upon the case of Brown v. Commissioners of Johnson County, in which a warrant, drawn payable “ out of any money in the county treasury, not otherwise appropriated,” is assumed to be drawn upon an uncertain fund, which must be alleged and proven to exist. We *471axe disposed to differ from the opinion of the majority of the court in the above case. Upon this question, that opinion is exceedingly brief. There is no argument, no reasoning. The point is simply assumed. Creen, J., dissents, and in his opinion expresses the truer reasoning.
We are perfectly sensible of the importance of the idea of overruling former decisions, but in the present instance, this responsibility is alleviated by the fact of a dissenting opinion in the foregoing cause, and the brevity, and want of reasoning and authority, in the opinion of the majority, and by the consideration that' no settled interests or titles will be disturbed by the change. .
In a warrant payable like these, from any money not otherwise appropriated, what do the words, “not otherwise appriated,” mean? There is reason to doubt whether they mean anything. There is no mode in which the county judge appropriates the money of the county, other than by drawing warrants on the treasurer. The statute, (Code, § 454,) allows a tax for schools and for roads within certain amounts, and sometimes for special purposes. These funds may, in some sense, be said to be appropriated. But there may be, and there is, levied a tax for “ ordinary county revenue.” This, as the terms imply, is to meet the ordinary and miscellaneous demands upon the county. The most that the above language in the warrants can mean, is that they are not to be paid from those, or similar special funds. It might be said, truly enough, that when payable from the general resources of the county, the warrant may be drawn without such words or qualification. This is true enough; and yet what effect has” the addition of those words, but to express the idea that they are not to be paid from those special funds ?
Then the only question is, whether the creditor of the county should be held to aver and show that there is money in the treasury ; and it is as clear to us as any proposition can be, that he should not be held to this. He is obliged to have his claim settled by the county judge ; the judge cannot pay the money, but is obliged to draw a war*472rant on the treasurer for it. Now is there any reason or justice in saying, that the creditor must allege and prove funds to be in the treasury, because he took a warrant, or because he took such an one? Upon a refusal to pay, he might return the warrant and sue on the original consideration, and then he would be relieved from that responsibility. In the opinion of this court, these warrants were payable unconditionally, and if there was no money in the treasury, the county is answerable. All considerations of justice and of good law, require this decision.
The next question is, whether the District Court was correct in sustaining the demurrer to that part of the answer — ■ or to’that defence — which alleges a want of consideration, and in refusing to permit the defendant to show this ? The' ground taken in the demurrer is, that the action of the county judge is an adjudication ; that it is final, unless an appeal is taken; and that it cannot be reached in this manner. The argument is, that it is the settling of a demand, and that it is & judicial act, and is to be treated as such. This, also, is the view — and the only one — in which it is discussed in the arguments on both sides. Therefore, we shall consider it under the same point of view, assuming that this was the ground upon which the court decided the demurrer.
We are constrained to differ from the opinion of the District Court. It seems impossible to avoid viewing the county judge as possessed of two distinct characters — the one, as the “ general agent” of the county, and the other, as a judge. It may be difficult to define the limits of the two, and cases may arise in which it will be difficult to discriminate, but this affords no argument against the distinction in cases which are clear. The statute seems to give countenance, on its face, to the thought that the judge acts in these two capacities, by the division of chapter 15 of the Code, when at section 125, it professes to treat of him “as a county court.” But the main argument lies in the nature of the case. It is true that the character and the duties may often intermingle; and it is true that the county court is to be considered in law as always open. But there are cases in which we cannot con*473sider bim as acting in a judicial capacity, but must view him as an agent — as one appointed to attend to the interests of the county, and to do its business — cases in which he is merely a business man. Such will arise under section 105 of the Code, by which he is empowered to “take the management of all county business, and the care and custody of all the county property is required to keep certain books; is authorized to institute and prosecute actions for the benefit of the county, and to superintend its fiscal concerns, and secure their management in the best manner; to keep and publish an account of the receipts and expenditures; and to provide rooms, books, stationery, and furniture, for the county offices, &c. Some of these acts are purely ministerial, whilst others are at least, not judicial.
The auditing a claim is judicial, in so far as an appeal lies, but drawing a warrant, is ministerial. And neither the buying a piece of land, nor the agreeing upon the price, is a judicial act. In such a transaction, the parties must stand as equals. If the act is judicial as against one side, it must be against the other also. The judge’s refusal to purchase, becomes judicial decision, and as it affects private interests, the proposed vendor may appeal; and carrying out the logic, if the judge offers to give a less sum than is asked, it is a judicial decision, and the vendor is bound to comply, unless he appeal. This seems strange, but is it not the natural consequence of regarding all acts of the county judge as judicial ? If he is judge always, there can be no such thing as negotiation.
In truth, it is necessary to regard him sometimes as an agent only, or as we would any other man transacting business. If a county judge causes a fence to be built about its court-house grounds, and trees to be set out, it is not done judicially, nor is agreeing upon the price. But the same matter may assume a judicial character partly. Thus, if the judge refuses to pay the price agreed, or to allow a reasonable compensation, when none was agreed upon, the demand may be presented in such form and manner as to allow an appeal. Contracting for the building of a court-house,' or *474jail, is not a judicial act; and if warrants are drawn in advance of tbe work contracted for, and then it is not done, would it be contended that payment of tbe warrants may not be refused; and if a succeeding judge, tbrougb ignorance of tbe facts, or mistake, issues new warrants for tbe same work, may it not be shown that tbe work bad already been paid for, and that tbe second warrants are without consideration? It seems manifestly necessary to discriminate between tbe acts of this officer; otherwise many who suppose they are negotiating a business transaction with him, may find themselves bound up by a judicial decision. It will not be practicable to regard tbe same transaction at one moment, or on one side, as a business one ; and in tbe next moment, or on tbe other side, as a judicial proceeding.
It is not made to appear in what manner this matter was presented to, or came before tbe county judge, and no question is made upon this, in tbe case. It is tbe opinion of tbe court that tbe defence should have been admitted, to proof, and that tbe court erred in sustaining tbe demurrer.
Tbe judgment is reversed, and tbe cause remanded for further proceedings.