#### JOSEPH S. DEY *vs.*JESSE B. LEE.

Where an order made by a County Court directed to a public agent, commanding him to pay a contractor for work done, is revoked by a subsequent Court, such agent is discharged from a promise to pay such order made before the revocation.

*239AotioN of assumpsit, tried before Bailey, J.,' at the Eall Term, 1856, of Currituck Superior Court.

The plaintiff declared for the nonpayment of a certain county order in favor of one Gilman, and which, on certain conditions, it was alleged he had promised to pay. It appeared that Gilman had contracted with .commissioners appointed by the Court to do certain work in the office of the public register, in transcribing a book, &c., which was represented to the Court as having been done according to the contract; whereupon the Court made an order for his payment. The order in question was as follows :

“Currituck County, November Term, 1851.

Ordered that John Gilman, public register, be allowed the sum of- one hundred and fifty dollars for transcribing one book and re-indexing several others.

Attest. J. -W. Baxtee, C. C. C.”

"Which was. endorsed, *“*Pay the within to J. S. Dey, for value received. Signed. , J. Gilman.”

This order was presented to the defendant, who was the county trustee, before it was endorsed. He promised the plaintiff if he would procure the endorsement of the said Gil-man, lie would pay him the amount. He did so, and again presented it to the defendant, who refused to pay, alleging that Gilman owed him sixteen dollars, and if the plaintiff would not deduct that amount he would hold the money until he could make it out of the same.

After the endorsement, as above stated, was made, and after the defendant’s refusal, as above stated, but before the bringing of this suit, the County Court of Currituck passed an order instructing the defendant-not to pay the order above recited.

The defendant contended that lie was not liable for this debt in his individual capacity ; and that, the order being reversed, he ivas discharged from his promise to pay ; and further, that there was no consideration for the promise. lie also contended that the promise hot being in writing the defendant was protected by the statute of frauds.

*240The- Court intimating an opinion that the plaintiff was not entitled to recover, in submission thereto he took a nonsuit and appealed.

Jordan, for plaintiff.'

Smith, for defendant.

Nash, C. J.

This case is governed by those of *Dameron*v. Irwin, 8 Ire. Rep. 421 ; *Tucker*v. *The Justices of Iredell,*13 Ire. R. 434. The first was an action on a bond executed by the defendants, who were commissioners, appointed by the County Court of Oleaveland, to make a contract for the building of a court-house. There was a dispute as to the sufficiency of the work, and the contractor brought the action. The Court decide that the action could not be sustained, because the defendants were public agents, and not bound individually. They had not so contracted. The case of Tucker is directly in point. Under a contract with commissioners, duly appointed, the plaintiff had built a bridge for the county, and the County Court had made an order for payment by the defendant, who was the county trustee. This order was presented, but not paid for want of funds; though the defendant had promised to pay when funds came into his hands. At a subsequent Court that order was repealed. In their argument, the defendant’s counsel took the position that the action ought to have been against the trustee. The Court say no action lay against the trustee on his promise to pay when funds came into his hands, because he would hold the money as a public officer, and while in liis hands it was subject to the control of the County Court, without whose authority he could not pay it to any one.

In our case, after the second order of the Court reversing the first, under which the promise was made by the defendant, and upon which the action is brought, the defendant had no power to pay the demand of the plaintiff. He was not personally liable, for he was a public officer, and as such the promise was made. There is no error.

Per CuriaM. Judgment affirmed.