
    
      David Lesley vs. John White and others, Commissioners of Public Buildings.
    
    1. The Commissioners of Public Buildings are notliableto be suedfor money expended by the Ordinary of a district in procuring articles for the use of his office, as for so much paid for their use, where the articles for which the Ordinary claims to be repaid, have not been furnished upon any contract with the Commissioners, nor at their instance and request.
    2. Even if it were their duty to provide the articles sued for, according to the Act of 1839, they would not be hable in any form of civil acti.on for their neglect of duty.
    
      Before Earle, J., at Abbeville, Fall Term, 1842.
    The plaintiff is Ordinary of Abbeville district.
    He purchased, for the use of his office, a seal, screw and other apparatus for affixing it to papers, to the amount of fifteen dollars, and brought this suit before a magistrate, to recover back the money from the commissioners of public' buildings, as so much money paid for their use. He obtained judgment^ and the defendants appealed. On the hearing in the Circuit Court, his Honor was of opinion that the defendants, as commissioners of public buildings, were not liable to this action. In the first place, the presiding Judge did not think the articles enumerated were required by the Act of 1839 (the only one on the subject,) to be furnished, or paid for by the public, or by the commissioners acting for the public. In the second place, it was held by the court, that this was not the proper form of proceeding to compel the performance of their duty. That they could only be held liable in a civil action, upon their express contract, or upon their implied liability to pay for what had been furnished at their request. Even if bound to furnish the articles, it did not follow that they were bound to pay any man who chose to furnish them without consulting them. The judgment was reversed.
    The plaintiff appealed, and moved the Court of Appeals to reverse the decision and for decree for plaintiff, on the ground of error in the presiding Judge.
    Wilson, for the motion,
    cited the Acts of 1827, p. 33: 1837, p. 42; 1841, p. 156; 1839, pages 47, 41 and 42.
    Martin, contra. •
   Curia, per

Earle, J.

This court concurs in the judgment of the Circuit Court, as to the right of the plaintiff to maintain this action against the commissioners of public buildings. The articles for which he claims to be repaid were not furnished on any contract with the commissioners, nor at their instance and request. Nor is there any circumstance from which an implied obligation will arise. If it. had been their duty to provide the articles sued for, according to the Act of 1839, yet they were not liable to be sued in this form, nor in any other form of civil action, for their neglect of duty. Whosoever lays out his money to procure what they ought to provide out of the public funds, renders doubtless an acceptable service to the public, at whose hands he must claim his remuneration. On the construction of the Act referred to, the court does not see fit to decide the question whether the commissioners are bound to provide the articles for which the plaintiff claims to be paid. There is at least room for two opinions, and the court will only decide the point when it is directly made. Motion refused.

Richardson, O’Neall, Evans, Butler and Wardlaw, JJ., concurred.  