Opinion
November, 1794.
Miller and Peery for plaintiff.
Wilson and Bayard for defendant.
It was urged by plaintiff's counsel that no proof of a promise to pay is necessary, it is implied, and cited Bull.N.P. 128, Cowp. 289, 290, 2 Burr. 1012. That money paid by a void authority is recoverable in assumpsit 1 Esp.N.P. 4, 1 Ld.Raym. 744, and 1 Salk. 27. (Quod vide.) And that defendant ought to show the money was put out at interest for the minor to discharge himself. The administratrix cannot recover it for it is not hers.
Wilson and Bayard for defendant. It is not necessary that defendant show how the plaintiff may recover his money or from whom, though the administratrix, if the Orphans' Court had no right to receive it, as plaintiff has urged, is liable to plaintiff. The money was paid to the court not to Phillips Kollock; the receipt is the court's signed by their clerk. Money paid to or credit given an officer, as such, is not to be recovered of him in his private capacity, 1 Term 172, Macbeath v. Haldimand, and idem 678. That an assumpsit is not implied where the presumption is taken away, 1 Esp.N.P. 86, which is clearly the case where government through an officer, a master through a servant, or a court through their clerk is entrusted or credited. If the money was paid by a void authority, and if the court received it, it is to be collected from them; and if that be impossible, it was only the fault of the administratrix and her voluntary act. That the Statute of Limitations runs against an infant who has a guardian, P. Wms.
The Court gave no direction to the jury, MR. BASSETT having been originally concerned. Verdict for plaintiff for principal and interest, deducting for five years.
Motion on Saturday, the last day of the term, by Wilson for a rule to show cause for new trial. The Court refused the rule then, but gave him leave to move at the next term. Defendant paid the money and so it ended.
Plaintiff produced a receipt from defendant as clerk of the Orphans' Court for £43.1.8, paid by Mary Sharp, administratrix, by the hands of Philip Windsor for the use of plaintiff.
Defendant proved by John Russel that the money was paid into the court, and that the clerk used only to part with it by the direction of the court.