The Commonwealth v. Garth, 3 Call 6

ROANL, Judge. I think that the Court would have been justifiable in presuming the payment; as the defendant did not appear and rebut the presumption, by producing the warrant, or otherwise discharging himself from the receipt: especially, as the Treasurer said he had no means of distinguishing the warrants so as to ascertain the payment expressly. CARRINGTON, Judge. I can never bring my mind to let all the Commissioners shelter themselves under such a defence as this, if they are not entitled to the money. Therefore, I think the other point should be gone into. LYONS, Judge.

I suppose it must lie over to be argued on the other point; but, a man might have lost his warrant, and not drawn the money. Nicholas, Attorney General. The question is, whether the appellee was entitled to the compensation of the 201.? He clearly was not: for; although the act of 1790, c. 16, [13 Stat. Larg. 126,] states that doubts had arisen concerning it, yet a fair exposition of the law will prove, that the Commissioners had no right to the money. The act of 1782, Ch. Rev. 178, [c. 19, 10 Stat.

Larg. 144,] gave the 201. as a compensation to the old Commissioners for copying and delivering of the book to the Auditors; but, the act of 1786, page 9, [c. 4, 12 Stat. Larg. 248,] constituted a new officer, and gave him no other reward than the six shillings per day. *Wickham, contra. The Auditor and the Commissioners always acted upon the idea that the Commissioners were entitled to the 201. ; and, therefore, a motion, which is in nature of an action for money had and received, will not lie; because it was not against conscience that the defendant retained the money.

The various acts ought to be considered as one system. That of 1786 was intended to give a compensation in addition to what was given under the act of 1782, which allowed for copying and returning the book, making out lists, &c. : whereas the six shillings is given by the act of 1786, for a different duty altogether. For, the Commissioners appointed under that act were merely substituted in the room of the old ones; and were not new officers to every purpose, as the Attorney General would have it.

Consequently, the defendant, in receiving the 201., did not get a double compensation; as he received it for different duties, and not for the same.

The Judgment was as follows: “The Court is of opinion, that the warrant for thirty pounds, in the proceedings mentioned, was by mistake of the Auditor, erroneously issued, and delivered to the ap-pellee as a Commissioner in the county of Albemarle, for services performed in the years 1787, 1788, and 1789; and that, as the appellee hath not returned the said warrant, it is presumed that the amount thereof has been paid by the Treasurer, and that the said judgment is erroneous.

Therefore, it is considered that the same be reversed and annulled, and that the Commonwealth recover against the appellee the costs expended, in the prosecution of the appeal aforesaid here, and the Court proceeding to give such judgment as the said General Court ought to have given; it is further considered, that the Commonwealth recover against the appellee the thirty pounds ’’'’aforesaid, and the charge of the notice, and the costs of the motion in the General Court.”