Lyne

US

Gilliat

"ment was made, of eight, inftead of fix months, "fo as to take off two months intereft, but, as it "did not appear that he had given the plaintiff "notice of the laft objection, the Court would not "admit the teftimony." Verdict and judgment for the plaintiff; and the defendant appealed to this Court.

Per Cur: affirm the judgment.

Where the Auditor drew

a warrant in

the Court will

COMMONWEALTH
against

TH

GARTH.

HE auditor of public accounts moved the General Court for judgment against the defavour o. one fendant for £. 30 "alledged to have been erroneof the Countyoufly paid him as a Commiffioner in the County co millioners, of Albemarle for fervices performed in the years profume pay1787, 1788, and 1789." The Court overruled ment by the the motion, because no evidence was offered in beTreaferer un- balf of the Commonwealth to prove that the warles the war- rant issued to the defendant was ever presented to rant be produced or he o- or paid by the treasurer, or that the same bath therwile dif- ever been discounted for taxes, or otherwise satischarges him- fied or discharged. From which judgment the aufelt of the re-ditor appealed to this Court.

ceipt.

NICHOLAS Attorney General. The Court will prefume payment of the warrant, as the defendant might have drawn the money at any time; and it is not fhewn that he either has the warrant or that it hath been loft. This prefumption will be the rather made, because I am informed at the treafury that they keep no account of thefe warrants, when paid in by the Sheriffs

and public officers, by which they can fpecifically know them; but the fame are destroyed.

WICKHAM-tated that he had been employed by the commiffioners to argue the general queftion, whether they were entitled to the money or not; and if the Court fhould be of opinion against the defendant on the point already made, that he wifhed to be heard as to the right to the money.

ROANE Judge.-I think that the Court would have been juftifiable in prefuming the payment; as the defendant did not appear and rebut the prefumption, by producing the warrant, or otherwife difcharging himfelf from the receipt. Efpeci ally as the treasurer faid he had no means of distinguishing the warrants fo as to afcertain the payment exprefsly.

CARRINGTON Judge. I can never bring my mind to let all the commiffioners fhelter themfelves under fuch a defence as this, if they are not entitled to the money. Therefore I think the other point fhould be gone into.

LYONS Judge. I fuppofe it must lie over to be argued on the other point; but a man might have loft his warrant, and not drawn the money.

NICHOLAS Attorney General. The queftion is whether the appellee was entitled to the compenfation of f. 20? He clearly was not for, although the act of 1790 ch: 16 ftates that doubts had arifen concerning it, yet a fair expofition of the law will prove that the commiffioners had no right to the money. The act of 1782 ch: rev: 178 gave the f. 20 as a compenfation to the old commiffioners for copying and delivering of the book to the Auditors; but the act of 1786 page 9 conftituted a new officer, and gave him no other reward than the fix fhillings per day.

Commonwealth

US

Garth

WICKHAM contra. The auditor and the com miffioners always acted upon the idea that the commi liners were entitled to the £. 20; and therefore a motion, which is in nature of an action for money bad and received, will not lie; because it was not against confcience that the defendant retained the money. The various acts ought to be confide ed as one fyftem. That of 1786 was intended to give a compenfation in addition to what was given under the act of 1782; which allowed for copying and returning the book, making out lits &c: Whereas the fix fhillings is given by the act of 1786, for a different duty altogether. For the commifioners appointed under that a were merely fubitituted in the room of the old ones; and were not new officers, to every purpole, as the Attorney General would have it. Confequently the defendant, in receiving the f. 26, did not get a double compenfation; as he received it for different duties, and not for the fame.

The Judgment was as follows;

"The Court is of opinion that the warrant for "thirty pounds, in the proceedings mentioned, "was by miitake of the auditor, erroneously iffued, “and delivered to the appellee as a commiffioner in "the county of Albemarle, for fervices performed "in the years 1787, 1788, and 1739, and that as "the appellee hath not returned the faid warrant, "it is prefumed that the amount thereof has been "paid by the Treafurer, and that the faid judg

ment is erroneous. Therefore it is confidered "that the fame be reverfed and annulled, and "that the commonwealth recover against the ap"pellee the colts expended, in the profecution of "the appeal aforefaid here, and the Court pro"ceeding to give fuch judgment as the faid Gene "ral Court ought to have given. It is further "confidered that the Commonwealth recover againit the appellee the thirty pounds aforefaid,

66

"and the charge of the notice, and the cofts of "the motion in the General Court."

MANDEVILLE & JAMESON,

against

PATTON & SCOTT.

PATTON and SCOTT brought an action of

and

assumpsit against Mandeville and Jamefon in the huftings court of Alexandria, and declared up on a note given by the defendants, wherein they, promised to deliver to the plaintiffs Wet goods groceries to the amount of 1800 dollars at cas price, for value received of William Young. Plea non assumpsit: Iffue.

66

The affignee of a promissa. ry note nego Bank of A.ex

tiable at the

andria, cannot

botter it in dif. count to a luit brought against him by the allignor

Upon the trial of the cause the defendants filed a bill of exceptions to the courts opinion, which ftated that the defendants offered in evidence as an offset a note given by Fletcher and Ottway to the plaintiffs, and affigned by them to the defendants, which is in thefe words: 1125 dollars "due July 20-23, Alexandria 21ft, April 1797, "ninety days after date we promile to pay to meff. "Patton and Scott, or order, eleven hundred and "twenty five dollars value received, negotiable in "the bank of Alexandria." The bill of excepti ons, after reciting the faid note, adds, "which note is endorsed by Robert Patton and Charles Scott and Theodorick Lee, and which affignment is in these words to wit, Pay to the order of Mandeville & Jameson." The bill of exceptions then fets forth in bæc verba a proteft of the said note on the 24th July 1797 for non payment, at the requeft of the prefident and directors of the bank of Alexandria, by the notary public at Alexandria; that the plaintiff objected to the note's being given

upon a note in

writing to de

liver to the Goods and plaintiff wet Groceries to a certain amount.

Pattton and

#

Mandeville in evidence; and that the court would not permit and Jamefon it to go to the jury----Verdict and judgment for the plaintiffs. The defendants appealed to the Dif trict Court where the judgment was affirmed; and from the judgment of affirmance the defendant appealed to this court,

Scott.

RANDOLPH for the appellant. The court fhould have fuffered the evidence to go to the jury, to have had as much weight as they might have thought proper to give it; because they would have difregarded it if there was delay in the affignees; and fo no inconvenience would have refulted from the reception of it: Whereas the courfe purfued was calculated to produce great injury to the defendants; for, if they were guilty of no delay or other fault, the note ought to have been difcounted, as the plaintiffs were liable in confequence of the failure of the makers to pay. This argument is the ftronger on account of the note's being made negotiable at the bank of Alexandria; which made the affignors liable like the indorfors of an inland bill.

BOTTS contra. The defendants were not entitled to the discount, without having, previously, fued the maker, LEE vs. LOVE in this court. For that cafe not only decided that a fuit was neceffary, but that the note's being made negotiable at Bank created no difference: And the true conftruction of the act eftablishing the bank always has been that it applied only between the Bank, and thofe having tranfactions with them.

Cur adv. vult.

LYONS Judge-Delivered the refolution of the court, That there was no error in the judgment of the Huftings Court in rejecting the evidence; and therefore that the judgment of the District Court was to be affirmed.

* 1. Call