¶1I 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.
¶2I 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.
¶3I suppose it must lie over to he argued on the other point; but, aman might have lost his warrant, and not drawn the money.
¶4*8The Judgment was as .follows:
¶5“ 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 appellee as a Commissioner in the county of Mbemarle, 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.”