
    AT NISI PRIUS, AT YORK,
    OCTOBER ASSIZES, 1796.
    coram yeates and smith, justices.
    Archibald Steel against Thomas Duncan and James Dunlop surviving administrators of Daniel Duncan.
    A settled account between other parties, is not evidence against a defendant. Anoiiicer of the United States, who has disbursed money in liis public capacity, cannot support a suit in his own name for such money, till ho has settled his accounts.
    Case. The declaration contained two counts : 1st, Indebitatus assumpsit for 7125i. had and received to the plaintiff’s use, and money laid out and expended at the request of the intestate. 2d, Insimul computasset.
    
    It appeared in evidence, that David Duncan of Pittsburgh, assistant quarter master in the service of the United States, during the late war, had drawn an order on the plaintiff, then also in the quieter master’s department, for a large sum of money, the exact amount whereof was not shown; and that the same was payable to the defendant’s intestate.
    That on the 18 th December 1779, the plaintiff wrote to the defendant’s intestate, informing him that he could pay no more than 19,000 dollars thereon, and that it gave him pain not to comply with the order of the said David Duncan, but he hoped he would have it in is power to serve him in a short time. The letter was subscribed by the plains tiff£4 as assistant quarter “ master,” andindorsed, u on public service.”
    On the next day, John Slaughter for Daniel Duncan passed his receipt to the plaintiff for 19,000 dollars, on account of David Duncan, which sum he promised to be accountable for.
    The plaintiff then produced a settled account between himself and David Duncan, wherein the balance due from the said David to him, was struck, as 100, 684l. 14s. 9d.
    
    
      This account was objected to, as res inter alios acta, and overruled by the court on that ground. The court moreover declared, that the plaintiff had not entitled himself to the present action. The transaction between Daniel Duncan and him was merely confined to the order of David Duncan. It might have been given, for any thing that appears to the contrary, on a private account between Daniel and David. And the suit would have more properly lain against David Duncan by the plaintiff in his private capacity, if he had settled his accounts as assistant quarter master with the United States. But until such settlement was made by the plaintiff, the money was only suable for, in the. name and for the use of the United States.
    The counsel then said, they would tender a bill of exceptions, which was agreed to.
    They afterwards agreed, that the suit should proceed for the benefit of the United States ; but the court adhered to their former opinion.
    Messrs. Hamilton, Bowie and Montgomery, pro quer.
    
    Messrs. Duncan and C. Smith, pro def.
    
   Verdict for the defendants.  