Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-07-03

that ii was there. IN neither casa can he Oh
Ject, That the money stated was not in the
treasury, at the commencement OF his term of
IL: This doctrine holds a fortiori as TO him,
as ne was also the former treasurer 4 man
may, more readily give confidence to himself
Than to another, and there is less hardship in
holding him to the consequences of il. John
Preston might by calling count of the mo.
ncy, at the commencement of his term of
1919, and finding a deficiency, have charged
himself as for the year 1918, and discharged
himself and his suretes for the year 10; fail
inS To do this, however, he has admitted him
sell to have the money in 10, and he and his
S,ifeues Tor that year are consequently liable.
ihe conclusion resulting from these principles
~, that all the money stated i'm the books to
DC IN the treasury i'll January 'I9, is admitted
TO have been there, and that no parol evidence
can be received to shew the contrary.
Inc foregoing opinion Of the court i'm rcla-
tion to the copy of the deed offered in eyi,
oence and rejected, makes it unnecessary for
us TO decide, conclusively, upon the Judgment
OF the General Court, objected to in the first
Dill OF exceptions AS however. the original
steed was proved by the appellant to have
been IN the hands of one of the appelces. as
1t was not known by the appellant TO be else
where, AM as the appellee, Francis Preston, no
otherwise discharged himself from the custo-
dy thereof than by his own verbal and I'M
sworn statement our present impressions are,
tilat he ought to haze been considered in th,.
possession thereof, so as to let in the readino
of the copy by the appellant, or at least to
procure a continuance of the trial. Had such
continuance been moved for and rejected.
tiiat REJECTION would in our opinion, have been
clearly erroneous. We repeat, however, that
we do not decide this question 1t is unneces-
sary III this case to be decided.
Inc court is of opinion, that there is no err
for IN SD much of the opinion of the General
Cour1 as sustained the demurrer to the third
plea, and overruled the same : nor II, overall
! ing the motion Of The appellants to reject the
second plea. The reasons i'm favor of thcs,
| Opinions cfthe court are so manifest that they
need act be assigned.
| Inc court coming moro particularly to the
judgments complained OF in tie 90 Bill of ev-
ceptions rendered by the appellant, and bear
| ing IN mind the principles and reasons herei,,
more particularly detailed in relation thereto i,
0i opinion, that the motion made by the appel
| liant 10 exclude the evidence SO as aforesaid
addaced by the appeees from going to III
| Jury, rs being inadnias,hle evidence, so far as
the same was offered 10 exonerate the said an
PeIees from responsibility for the balance OF
05,O39 SO, Appearing from the books and
reports OF Joha Preston, "a treasurer, to b..
| dtie IT, the commonwealth AZ the fima ofh;.
resignation, ought to have been sustained !.
ana that the judgement Of the General Court
overriding the sail Motion, aud admitting tn.
sal 3ad evidence to 90 10 the jury, ID crronlous
| The court il also Of opinion, that tie second
motion OF the appellant for the court to III
itruct the jury, that notwithstanding, the facts
proved by the appellees rs aforesaid, the com
| lnonwcaith was entitled To recover a.raipsf
thein the said sum of $1,000 80 cents. fthe
deficit appearing on the treasurer's books as
Kept for the year 1887 and also the several
sums OF S i,4s8 08 cents, s $4,000 S5,48l 81.
ana ) DO, as IS III the said bill of exceptions
more particularly explained, ought to have
eeen ACKNOWLEDGEMENTS the said several sums
last mentioned, although not received in I3Io
nor properly audited or entered ON the trea'.
furer's books at the time when received vet
were entered i'll the bank to the credit of the
saiu John Preston, as treasurer of the COM
monWeaith, and were reasonably to be re-
garded, as constituting part of the S ga. oss
62 cts. turned over in bank by him to the an
! peliant, upon his resigning his olIice.--The
court Is consequently ofopinion that the iude-
meht OF the General Court overruIing tn.
same, and declaring that the appellees wrye
only liable for the due application by tle sa;J
JoAn Preston for the sum actuQlll in the trea
s:iry, at the commencement of his last term of
Once, and oil the Sums received by him during
his sad term, is erroneous. The reasons one
Tati15 with the court, for coming to this con-
clIIsion, have been already sufficiently detail
ed. The court is also of opinion, that tho mo
ney received III the bank by the present trea-
Surer from MS predecessor, was q payment bv
the latter TO the former for the use of the com
ihohweaitsl, ana having been made without
any specific direction as TO the appIicafion
thereof, the present treB lrer had a right fo
apply the same to the extinguishfnent ofanx
balance due by him to the commonwealth
winch became due by consequence ofnot Gre
dhing the commonwealth with thegatne mo-
ney on The treasury books which money he
had received as treasurer, and had nasse,] IL,
MS credit as treasurer in bank, the pavment
oeing made with the same money In hanI,
which should have appeared to the credit of
lfe commonwealth ON the treasury books -
ana That the Judgment and instruction given
% the Jury, contrary to this position ia GRO
neous--Itis, therefore, the Unanimous onin-
ION 70 OF the court that the said Judgment ofthe
General Court IS erroneous, aud should he rp-
fersed. All the judges concur not only in ibi{
conclusion, but also in all the points and prin
cipies now laid down---except that one Judge
dlSsents from his brethren upon one point:
and On that point will be pleased 70 express
MS o'vn opinions. Therefore it is considered.
that the SAID judgment be reversed and annul
led, and that the appellant recover against the
appeiless the costs expended in the prosec,i-
ton OF the appeal aforesaid here And II *
ordered, that the jury's verdict be set aside.
and the cause relnanded TO the said General
Court for further proceedings TO be had and
ON further trial, that court viii give the in
sirucllons now approved by this court. if re-
CURED, and conform TO the other pripcipIes
laid down by the court, which is ordered TO
be certified 10 the General Court.
.
ITTDEr IVIITT,rr,ct