Commonwealth v. Garth

• Decision Date: 22 April 1801
• Citation: 7 Va. 6
• Parties: The Commonwealth v. Garth
• Court: Virginia Supreme Court

7 Va. 6

The Commonwealth v. Garth

Supreme Court of Virginia

April 22, 1801

The Auditor of Public Accounts moved the General Court for judgment against the defendant for 301. " alleged to have been erroneously paid him as a Commissioner in the county of Albemarle, for services performed in the years 1787, 1788 and 1789." The Court over-ruled the motion because no evidence was offered in behalf of the Commonwealth to prove, that the warrant issued to the defendant was ever presented to, or paid by, the Treasurer, or that the same hath ever been discounted for taxes, or otherwise satisfied or discharged. From which judgment, the Auditor appealed to this Court.

Nicholas Attorney General.

The Court will presume payment of the warrant, as the defendant might have drawn the money at any time; and it is not shewn that he either has the warrant or that it hath been lost. This presumption will be the rather made, because I am informed at the Treasury, that they keep no account of these warrants, when paid in by the Sheriffs and public officers by which they can specifically know them; but the same are destroyed.

Wickham, stated, that he had been employed by the Commissioners to argue the general question, whether they were entitled to the money or not; and, if the Court should be of opinion against the defendant on the point already made, that he wished to be heard as to the right to the money.

ROANE; 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 17...