Baldwin, J. concurring.

Plaintiff, who is Deputy Sealer of Weights and Measures for Yuba County, seeks to recover the sum of three hundred and twenty-five dollars, as the price of a set of weights and measures purchased by him for the use of his office.

The 3d Section of the Act of April 12th, 1858, authorizes “.every Deputy Sealer of Weights and Measures to procure, at the expense of his county, a complete set of weights,” etc. and Levy, after his appointment, proceeded to make such purchase, although he knew that there was a complete set of such weights and measures belonging to the county, in the possession of the County Clerk.

We think defendants properly refused to audit the account.

The county of Yuba was already in possession of the weights, etc. necessary for the office, and it was not contemplated that every change in the incumbent of the office should entail upon the county the expense of a new purchase of articles already on hand. It is not material that the County Clerk refused to deliver the weights, etc. to plaintiff on his demand; if he was entitled to their possession by virtue of his appointment, he should have taken proper steps to enforce this right.

Judgment reversed.