
    The Auditor of Public Accounts and the Attorney General v. Pauly.
    [November, 1804.]
    Appellate Court — Deposition—Admissibility.—A deposition taken before the decree was pronounced in the court of chancery, but not filed until after an appeal was taken from the decree, was received by the court of appeals.
    The appellee in this clause claimed of the commonwealth a balance which he stated to be due to him in consequence of his acceptance of certain bills of exchange, drawn by a certain Peter Penet, who, as it was contended, was duly authorized to act as commercial agent for the state of Virginia in France, during the revolutionary war. The bills are alleged to have been accepted on the faith and credit of the state of Virginia, as expressly pledged by the powers given to Penet.
    In the year 1789, Pauly brought suit in the high court of chancery to recover the amount of the bills so accepted and in part paid by him. The court of chancery referred the cause, for novelty and difficulty, to the court of appeals, and that court determined the proofs exhibited by Mr. Pauly, insufficient to support his claim, but remitted the cause to the court of chancery without prejudice, directing that commissions should issue from the chancery to take depositions. Under this direction, the deposition of John Francis *Labon was taken, and the chancellor decreed that the auditor should issue warrants for payment of the money which Mr. Pauly had advanced in discharge, and for which he was liable by his acceptance of such of the said bills as should appear to have been drawn and accepted, after deducting payments made by the commonwealth and by Peter Penet, and also so much as was the private debt of Peter Penet, admitted to be just credits by said Pauly.
    Under this decree, the auditor discharged all the said Pauly’s claim, except 11,897 livres, 3 sous and 8 deniers, for which sum Pauly had not produced the bills, nor does it appear that said last mentioned sum has ever been paid by him: nor indeed does it satisfactorily appear that such bills ever existed.
    The auditor having refused to pay this sum without the said Pauly would produce the bills, or exhibit some evidence of his having paid them, he appealed to the chancellor.
    In his petition, he states that he had recovered by a decree of the court of chancery, affirmed by that of the appeals, a considerable sum of money — that part thereof was suspended in payment as the decree specifies, until certain bills of exchange should be produced — that events in Prance have made it impossible to produce them — that the auditor refuses to allow them, and therefore he appeals from his decision.
    In this appeal are filed, on behalf of Mr. Pauly, the following depositions:
    That of Peter Penet, who states that some time after the execution of Robespierre was known in this country, an ex-noble, Be Baron de Beauvois, received a letter from Prance, enclosing a list of persons executed under Robespierre, amounting to eighty in number: Amongst these was Mr. Paulj, ingenieur at Versailles, supposed to be the brother of I/. A. Pauly; that when Mr. De Beauvois returned to Prance, B. A. Pauly requested him to en-quire after his brother, and about six months afterwards, Mr. JDe Beauvois wrote to the deponent, and informed him he had *'enquired for Mr. Pauly, but in vain; that there was no doubt he had fallen a victim of the times, which account was confirmed by a letter the deponent received from doctor John Rouelle, who was in Prance.
    The deposition of Prancis Gorlier, states that in 1782, he was acquainted with B. A. Pauly, who kept a considerable hardware store in Paris, and had the character of a punctual merchant. That in 1783, he understood Mr. Pauly had quitted business in consequence of having accepted bills drawn by the agent of Virginia, to which place he had gone to get reimbursed; that he never heard that Mr. Pauly was bankrupt, and being himself in the mercantile line he should have heard of it, if this had been the fact.
    The deposition of Charles Ive Pauly (which was never offered in evidence until October 1801, after a decree and an appeal therefrom) was at that time rejected as inadmissible.
    On the 6th of June, 1801, the chancellor decreed that the auditor should issue warrants on the treasury for the payment to Mr. Pauly of 11,897 livres, 3 sous and 8 deniers, with interest, upon the appellant’s giving sufficient security to indemnify the commonwealth against holders of said bills, and claimants under them.
    Prom which decree an appeal was prayed on behalf of the commonwealth.
    Nicholas, attorney general.
    The appellee was not entitled to the sum decreed him by the chancellor; for the circumstances of the case do not support his claim. The single question is, Whether Pauly shall have the money without producing the bills, or proving them to have been paid? and, surely, one or the other ought to be done. This is the stronger, because it appears that the bills which had been paid were sent over to this country, and have been discharged by the auditor. The probability is against the payment of those now in question: for the testimony is, that Pauly was reduced in his circumstances when he left Prance, and therefore the inference is, that he had not funds to pay them. *But, unless he actually' paid the bills, he cannot, by any rule of justice, be entitled to recover the money of the state. If he should, the holders of the bills might still claim payment of the public. But it may be said, perhaps, that the length of time which has elapsed shews that the holders have abandoned all recourse against the state: that, however, will not help the appellee. Por the abandonment ought to operate in favour of the state, and not of the appellee, who cannot justly claim money which he has never paid: It is the payment of the bills only which can give him a right to recover; and therefore if he has not paid them, he has no sort of claim to the money, whether the holders of the bills abandon them or not. It is not enough to say, that the state is sufficiently secured by the bond of indemnity required by the decree; because the obligors may become insolvent, and the security fail: Besides, although the state might be secured, that cannot give the appellee a claim to the advance of money which he has no right to. His own account states that the money is to be paid when the bills are produced: which shews his own impression to be that he has no title before. The deposition of Ch. Pauly cannot be read, as it did not come in until after the decree was made. If the appellee thought it material, he ought to have moved the court of chancery for a continuance of the cause until it arrived. But if that deposition be read, still it does not prove the payment of the bills; for the property might have been otherwise appropriated by those with whom it was left.
    Randolph, contra.
    The reputation of the appellee is fair; and, therefore, no ground of apprehension exists that he would impose an unjust claim upon the public. The total failure of the holders of the bills for twenty-two years, to claim the money from the state, affords a clear presumption that they have been paid; and that could only have been by Pauly, who once had possession of the bills; and the evidence shews that he left funds, in Prance, to pay them. *His memorial says so, and that memorial is cited, by the other side, against him : it is, therefore, evidence for him. This property, thus left behind him, was subject to the holders of the bills; and the probability is, that they received payment out of it. The late circumstances of Prance, and the situation of Pauly, put it out of his power to produce better evidence at this time; although the whole complexion of the case gives reason to be-Heve that it once existed. The public can sustain no injury by paying the bills, because the decree directs that Pauly shall give security to refund in case the holders of the bills should hereafter claim the money of the state. The deposition of C. Pauly, is very important; and there is no doubt but it may be read. Por it was duly taken before the cause was heard, although it did not arrive until after the decree was pronounced. It therefore falls within the reason of the case of Alexander v. Morris, in this court, 3 Call, 89. Por there the deposition came in after the decree was pronounced, as well as here.
    Nicholas, attorney general.
    If the court thinks a bill of review might be granted on such a deposition, I will consent to its being read.
    
      
      See monographic note on “Appeals.”
    
   TUCKER, Judge,

asked the judges, if the court should be of opinion that the chancellor heard the cause without full evidence, and should send it back without prejudice, ■ the chancellor might make the deposition of C. Pauly, the ground of a bill of review?

CARRINGTON, Judge.

I think he might.

TUCKER, Judge.

Although it appears that Pauly pressed the trial of the cause in the court of chancery, yet the situation of this country gives reason to think he might have hazarded the trial of his cause without the deposition, under an expectation that it would, if necessary, be afterwards received by a bill of review.

*RO ANE, Judge.

I think that upon the liberal principles which prevail with regard to bills of review, such a bill would be allowed upon a deposition thus situated; and therefore I am for admitting it.

CARRINGTON, Judge.

There can be no doubt that a bill of review would be allowed upon a deposition situated like this.

LYONS, President, concurred, and the deposition was read.

PER CUR. Affirm the decree.  