"Whenever any check or bank draft shall be tendered for the payment of any debt, taxes or other obligation due to the State or to any municipality therein, such check or draft shall operate as a payment made on the date said check or draft was received and accepted by the receiving officer, if it shall be paid on presentation without deduction for exchange or cost of collection: Provided, however, that no receiving officer shall be required to receive in payment of any debt, taxes or other obligation collectible or receivable by him any tender other than gold or silver coin of the United States, United States treasury notes, gold certificates, silver certificates, or national bank notes." There can be no question upon this record that, when County Treasurer Bennett entered the checks on the county treasurer's books as cash, he knew there were no funds in the bank to pay them. The fact there were no funds in the bank was the real occasion and reason for his having accepted the checks in the first instance. When, a month later, he deposited them in the bank upon which they were drawn, and where they remained for a month and were then returned to him and again charged to him as county treasurer, his attention was certainly again called to the fact that these checks were dishonored, if not worthless paper. There is nothing in the holding of this court in City of Sault Ste. Marie v. Hotten, 171 Mich. 265 (136 N. W. 1119), that justifies the conduct of defendant Bennett. In that mandamus proceeding, referring to the then county treasurer, this court said: "The city treasurer had a right to accept the checks for taxes, but, if the same were not honored, it would not amount to payment. * * * Whether the respondent acted with diligence after accepting the checks, whether he presented them for payment within a reasonable time, and whether relator was given the proper notice of the dishonor of the checks, are questions which ought not to be gone into on this record." 185 Mich.-36. We think the charge of the court upon this subject was as favorable to the defendants as they could ask. It was never contemplated by the act in question that the county treasurer, in settlement with a township or city treasurer, could accept stale checks, and, after their payment had been refused on presentation, carry them upon his books as cash for a period of two years. See Staley v. Columbus Township, 36 Mich. 38. The official books of the county treasurer are presumed to show the correct amount due from that officer to the county at all times. State Bank v. Chappelle, 40 Mich. 447. The general provisions of the statute which make it the duty of the county treasurer to receive and properly account for the county moneys was not intended to cover all his official duties. This clearly appears from the requirements of his official bond, which, in addition to the condition that this officer should properly account for all moneys received by him officially, is also conditioned that the treasurer, his deputy, and all persons employed in his office, shall faithfully and properly execute their respective duties and trusts, clearly implying that there are official duties and trusts imposed upon the treasurer beside that of receiving and accounting for county moneys. He is an indispensable officer, charged with many duties. Attorney General v. Supervisors, 30 Mich. 388. In our opinion defendant Bennett, having taken the checks for cash, having carried them, or the renewal check, throughout the balance of his term of office, nearly two years, on his books as cash, is chargeable with the amount as cash, and should be held estopped from claiming otherwise, especially in the absence of any showing from him or his sureties as to what or how much, if anything, he had received upon the checks, or any of them. Having received the checks as cash, he must be charged with them as cash. * County of Montmorency v. Wiltse, 125 Mich. 47 (83 N. W. 1010); County of Montmorency v. Putnam, 127 Mich. 36 (86 N. W. 398); County of Montmorency v. Putnam, 135 Mich. 111-118 (97 N. W. 399). It is further urged, in this connection, that the plaintiff has been guilty of laches in lying by, and not bringing this action until after the statute of limitations had run as to the Metzger checks. It already appears that the plea in this case was the general issue. No defense of the statute of limitations, or of laches, was interposed in the case. That this defense is not available to these defendants is apparent from an examination of Circuit Court Rule 76. Such defense would be an affirmative defense, and not available under the general issue. This rule has been applied by this court in many cases. 123 Mich. 151 (81 N. W. 1093); ler, 125 Mich. 218 (84 N. W. 133); Co., 132 Mich. 670 (86 N. W. 814, 94 N. W. 191); R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818);. Scott v. Longwell, 139 Mich. 12 (102 N. W. 230, 5 Am. & Eng. Ann. Cas. 679); J. Richardson & Co. v. Noble, 143 Mich. 546 (107 N. W. 274), and other cases. Bryant v. Kenyon, Upon this record it may be said that the defendants were as well informed in regard to the condition of defendant Bennett's books as county treasurer, and his account with the county, as was the plaintiff itself, and had equal means of investigation. We have examined the cases cited by defendants and think they can be readily distinguished from the instant case. The county having been damnified by the unlawful conduct of the said county treasurer, as above indicated and pointed out, it cannot be said that the sureties were released because of delay in discovering the default of the treasurer. City of Detroit v. Weber, 26 Mich. 284-293; Board of Education v. Andrews, 142 Mich. 484-487 (105 N. W. 1118); United States v. Hart, 95 U. S. 316. We think the case of County of Montmorency v. Wiltse, above cited, clearly indicates that a municipality is not required to investigate the character or collectibility of any paper which the treasurer may take in the payment of taxes, and carry as cash. We do not dwell upon the other assignments of error for the reason that we are of opinion that the trial court might well have directed a verdict for the plaintiff under the first count in the declaration, and that, if any errors were committed in the trial of the case, such errors were harmless. Finding no prejudicial error in the record, the judgment of the circuit court is affirmed. BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, and MOORE, JJ., concurred. STEERE, J., did not sit. ON REHEARING. PER CURIAM. On motion for rehearing, Justice STEERE taking no part in the case. In this case the plea was the general issue. It was urged as a defense that plaintiff had been guilty of laches in delaying the bringing of suit until after the statute of limitations had run upon the checks, and that therefore plaintiff was estopped from recovery. Aside from the question of pleading, there is an insuperable objection to the assertion of this claim by the defendants. This action is one virtually by the county in its governmental capacity, brought in the name of the board of supervisors because of the statute. Section 2466, 1 Comp. Laws. Johr v. St. Clair Supervisors, 38 Mich. 532. It is the well settled doctrine in this country, founded upon the most substantial dictates of reason and sound policy, that the government cannot be affected by the laches of its agents, or estopped from asserting its rights against an official servant, by the acts or omissions of auditors, trustees, supervisors, or other guardians of public rights. Board of Commissioners v. Dickey, 86 Minn. 31 (90 N. W. 775-779), citing Mechem, Pub. Officers, § 924, and cases cited; Seymour v. Van Slyck, 8 Wend. (N. Y.) 403-422; United States v. Kirkpatrick, 9 Wheat. (U. S.) 720; United States v. Van Zandt, 11 Wheat. (U. S.) 184; Gibbons v. United States, 8 Wall. (U. S.) 269-274. See, also, Lake Shore, etc., R. Co. v. People, 46 Mich. 193 (9 N. W. 249); City of Detroit v. Weber, 26 Mich. 284; People v. Supervisors of St. Clair County, 30 Mich. 388; Plumb v. City of Grand Rapids, 81 Mich. 381-394 (45 N. W. 1024); Day Land & Cattle Co. v. State, 68 Tex. 526 (4 S. W. 865); Conwell v. Voorhees, 13 Ohio, 523-533 (42 Am. Dec. 206). Mere nonaction of corporate officers will not work an estoppel of the corporation. Board of Supervisors v. Lincoln, 81 Ill. 156. See cases cited in 16 Cyc. p. 782. Motion for rehearing denied. PEOPLE'S STATE BANK v. MILLER. 1. FRAUD NEGOTIABLE INSTRUMENTS REPRESENTATIONS. - BILLS AND NOTES - .MIS Where defendant notified a firm of brokers to purchase certain stock which he did not pay for at the time, and where an officer of the brokerage firm later advised the defendant that they had purchased the stock and he thereupon paid a portion of the price by check, the false representation, in advising defendant that the stock had |