
    Thorne against Peck.
    
      Ja an actioi) f0aénSmonneySeaU {hlep]a°iétiff“tie gfvíta^éidS fromhSprSci thé money,
    
    IN ERROR, on certiorari to a justice’s court.
    The defendant in error brought' an action in the court below against the plaintiff in error, who was captain Of-a company Of militia during, actual service, in the year .1814, for his wages ánd íations. as a drummer in the company: . The defendant below acknowledged that he had received money for the pay and rations of his company ; and the plaintiff below had served in the company for á considerable time, and then deserted, but within ten days returned again, when the defendant below- refused to take notice of him, or to call his name ht roll-call. The defendant below offered to prove that the paymaster-general gave, him a verbal order not to pay any money to any man who had deserted, which evidence the justice refused to hear, ori the ground that the order ought to have been in writing, and that á verbal order was insufficient. The defendant then produced a written order, directed to him from the colonel of his regiment, commanding him to pay over all the money in his hands for back rations, to the quarter-master of the-regiment. - Judgment was given for the plaintiff below. - :
   per Curiapif

The. verbal order of the. paymaster-générái Was-obligatory on captain Thorne,. who, foiv the ..purpose of pay- . -mg the men, acted merely" as the agent .of the,paymaster-gene- . ral, and subject to his control,- The justice - eyred-in rejecting that evidence, .and the judgment ought to be reversed. . ' ■ •

Judgnient reversed.'  