
    *Commonwealth v. Cunningham & Co.
    [October, 1793.]
    Impressments — Act of 1781. — Impressments by the executive were either authorized or approved, by the resolution of the assembly, on the 12th of March, 1781; and therefore, the public was bound to pay for the loss which the owners of the impressed property sustained.
    Same — Same—Expiration of Act. — The act of November 1781, authorizing the county courts to examine into such impressments, and to certify the value of the losses, had expired before the 14th of June, 1784.
    Same — Same—Amount of Loss — How Ascertained.— And therefore, a certificate then made, by the county court, was not to be received to ascertain the amount of the loss; but the original appraisement, if tobe had, and liable to no objection on the score of fairness, or justice, should have been resorted to, for that purpose; or if that could not have been had, or should have been found liable to exception on those grounds, then by other
    - satisfactory evidence.
    Same — Same — Same — Same. — And therefore, the cause was sent back to the district court to have the loss ascertained in that manner, notwithstanding the act of congress in 1790. disallowing claims made after that period, (the court probably considering the proceedings as incipient, though not perfected, at the time of passing the act).
    Same — Same—Same—Same.—In such a case, an issue, tobe tried by a jury, isa proper mode of ascertaining the amount of the loss.
    Same — Same—Same—Same—Interest.—But the petitioners are not entitled to interest; and if the jury find it, the finding will be disregarded, and judgment entered for the principal only.
    Cunningham & Co. filed a petition in the district court of Henrico, praying to be allowed to appeal from the judgment of the auditor of public accounts, who had rejected their claim against the commonwealth for the value of a vessel and cargo, which had been impressed, for the public service during the revolutionary war.
    The petition set forth, that Cunningham & Co. were possessed, early in the year 1781, of the brig Wilkes, then in every respect well laden, armed and fitted for sea; that just as she was about to sail, the state of Virginia was invaded by the British army; and while the hostile fleet lay in the bay of Chesapeake, the brig Wilkes, being about to sail as aforesaid, was impressed into the public service under the order of the executive, and retained until the enemy came up James river, and sunk her: That the petitioners had applied to the county court of Nansemond county, in which they resided, for the establishment of their claim; *and obtained their certificate for ;£2959. 8. 3J4- on account of the vessel, and 145 thousand pounds of James river tobacco, that being the cargo on board the said vessel, when she was impressed and sunk. That, upon application to the auditor for payment, he refused; and thereupon, they applied to the legislature, who referred them to the judiciary.
    The auditor, on the 6th of April, 1792, admitted notice of the appeal; and endorsed upon the petition, That he did not recollect that the claim had ever been submitted to him before the claimants made application for payment to the general assembly; and that the resolution of the legislature referring it to the judiciary, had now taken it out of the cognizance of the auditor. That if application had been made to him before that resolution, he should have required proof of the impressment and appraisement of the vessel and cargo. That if there was any authority to impress, it would appear on the journals of the executive; and that he doubted whether the authority given by the act of assembly passed in November 1781, extended to claims like those of the petitioners. That the valuation of the vessel'and cargo was too high. That the claim, if allowable, was a just charge against the United States: but that the commonwealth would be precluded by the delays of the petitioners, in not prosecuting their demand at an earlier period.
    The depositions proved that the brig was a new vessel; that she was loaded with tobacco ; that the witnesses saw her while she was under the impressment, and after she was sunk; and that the cargo was wholly destroyed in consequence of it, and she greatly damaged.
    The certificate of the county court is in these words, “At a court held for Nanse-mond county, June the 14th, 1784, ordered, that Samuel Baron Cunningham be allowed the sum of .£2959. 8. 3)£. for a vessel impressed in the state service, and also the quantity of 145,000 tobacco of James river inspection, lost in the said vessel.”
    
      -A document is filed in the following words,
    “In Council, March 8th, 1781.
    “Captain Lewis,
    “Sir, — I am informed that the several persons whose services we desire to avail ourselves of on this occasion, wish an authentic assurance of what before I had communicated to you verbally. You are therefore authorized to inform them that their vessels and their loading shall be insured by the state, that a reasonable hire shall be paid for their vessels and men, and the usual share of prize and plunder allow'ed. I have no reason to believe that the British are at present at liberty to come out of Elizabeth river, but this will not long be the case. You will lie close at Hood’s till you receive further orders as before directed. I am, &c. T. I.”
    The judgment of the district court was as follows, “On the motion of the attorney general, and for reasons appearing to the court, It is ordered, That the order of the last court, directing an issue to be made up and tried in this cause, be set aside; and thereupon the appeal aforesaid being seen and inspected, sundry depositions and other papers read in evidence, and the arguments of the counsel heard, and it being admitted by the attorney general, that the said vessel was impressed into the service of this state, under orders from the executive thereof, it is the opinion of the court, that warrants ought to issue to the appellant, according to the certificate of the said county court, but that the tobacco aforesaid, ought to be turned into paper money, at the rate of eighty pounds per hundred, that appearing by the evidence to be the value of that article in paper money, in March 1781, when the same was destroyed as aforesaid, and the said paper money turned into specie according to the scale of depreciation, for the said month of March 1781: Therefore, it is considered by the court, that the auditor of public accounts do issue to the appellant, warrants for the aforesaid sum of two thousand nine hundred and fifty-nine pounds eight shillings and three pence half penny; and also *'for the sum of one thousand two hundred and eighty pounds seventeen shillings and nine pence one farthing, being the value of the tobacco aforesaid, turned into specie, as aforesaid. ’ ’
    From this judgment the commonwealth appealed to the court of appeals.
    Innis, attorney general.
    The executive had not power to order the impressment of vessels; and therefore the seizure being unlawful does not bind the state. If, however, the im-.ressment had been legal, the county court had not cognizance of the case, but the whole proceeding was coram non judice, and void. For the act of November 1781, only gave jurisdiction as to property impressed within the body of a county, which was not the case here. Besides, the act had expired by its own limitation, before application to the court; and none of the continuing acts were in force when the certificate was obtained. The proceeding was ex parte; and it does not ■appear that there were any papers or evidence before the court to enable it to form a correct opinion upon the subject. The petitioners did not leave the vessel in the possession of the public, but raised, and kept her after she had been sunk, without any application to government; which had consequently no opportunity of ascertaining the condition of the property, or the amount of the loss. The most, therefore, that the petitioners could claim upon account of the vessel, w-ith any semblance of justice, would be the expense of repairing her; but the certificate far exceeds any fair compensation upon that account: and, as to the tobacco, there is no voucher or testimony which supports the quantity or value of the article. The lapse of time precludes enquiry, as the public have not only lost such countervailing testimony as it would have been in their power to have produced at an earlier period; but are deprived, by the act of congress, of an opportunity of obtaining reimbursement from the United States; which would not have happened, if a recent investigation before the proper tribunals had taken place.
    *Marshall, contra.
    From the nature of things, the executive must, in periods of imminent danger, have power to impress such articles as are necessary for the immediate defence of the country against the ravages of an invading foe; and there can be no other distinction, as to the articles to be impressed, than the purposes for which they are wanted, and the exigency of the case. The county court had jurisdiction under the act of November 1781, which was meant to apply to all im-pressments, and the time for application had not expired, as the spirit of the continuing acts embraced it. It is not material that the impressment was in the bay, as it was made within the acknowledged jurisdiction of the state; for the legislature did not regard the place of impressment, but their sole object was a fair investigation before an impartial tribunal. That the proceeding was ex parte, is no objection ; for the act meant that it should be so; and the confidence of the legislature was that the county court would take care of the interest of the public. There is nothing to impeach the opinion of the county court; and it was not necessarj', that the evidence, upon which it was founded, should be stated. The petitioners did right in taking possession of the vessel, as it was a saving to the state, which had no longer any occasion for her. There has been no delay on the part of the claimants; on the contrary, their efforts were incessant. For they successively applied to the counts' court, the auditor, and the assembly, who referred them to the judiciary. Therefore nothing was left undone, which it was in their power to perform.
    Cur. adv. vult.
    
      
      Impressments — Claims for — Effect of Delay. — The principal case is cited in Com. v. Banks, 4 Call 341, 342, 345.
    
   PENDLETON, President,

delivered the opinion of the court as follows:

The question as to the power of the executive to impress, is settled by a resolution of the general assembly, passed in March 1781, in the following words: “Resolved, that the governor, with the advice of council, be empowered to impress and take into the public service such and so many *vessels, being private property, with their crews, for the transportation of troops, military stores or baggage across the rivers, creeks or bays, or other^purposes as the exigencies of affairs and the public service may require; and that the general assembly do approve of the conduct of the governor in heretofore impressing such vessels and their crews for the purpose of forwarding the public service, and that they will indemnify the proprietor thereof for all loss and damage consequent thereupon.” By this resolution, the court think that the impressment in the present case was either authorized, or approved; and that the public was bound to pay the loss consequent upon it. But the certificate of the county court of Nansemond, made on the 14th of June, 1784, when there Was no law in force to authorize it, should not have been received to fix the amount of the loss; but that the same ought to have been ascertained by the original appraisement, if to be had, and found to be liable to no objection upon the score of fairness or justice: or if that was not to be had, or was found to be exceptionable on either of the grounds just mentioned, then by other satisfactory evidence. The judgment of the district court is therefore to be reversed; and the following is to be the entry:

“The court is of opinion, that under the resolution of the general assembly of March the twelfth, 1781, the impressment of the vessel and cargo of the appellees in the proceedings mentioned, by order of the executive, was either authorized or-approved, and the public was bound to pay them for their loss consequent thereon: But that the certificate of the county court of Nanse-mond, of June the fourteenth, 1784, when there was no law in force which authorized county courts to adjust and certify such claims, ought not to have been admitted to fix the amount thereof, which should be ascertained by the original appraisement, if to be had, and liable to no objection as to its fairness or justice: But if that is not to be had, or should be found exceptionable on either of those grounds, then by other satisfactory *proof; and that-the judgment aforesaid is erroneous: Therefore it is considered that the same be reversed and annulled, and that the appellees pay the costs of the prosecution of the appeal aforesaid here: and the cause is remanded to the said district court for that court to proceed to ascertain the loss of the appellees in manner before directed. ’ ’

Upon the return of the cause to the district court, that court made the following order: “It not appearing that the original appraisement of the vessel and cargo in the proceedings mentioned is to be had, the court proceeded to hear the cause on the petition of appeal aforesaid, sundry depositions and exhibits, the judgment aforesaid of the court of appeals, the testimony of divers witnesses, who were sworn and examined, and the arguments of counsel; on consideration whereof, it is ordered that an issue be made up, in order to ascertain the appellants’ loss, consequent on the impressment of the said vessel and cargo by order of the executive.”

The petitioners accordingly filed a declaration, stating the impressment, sinking, and injury to the brig, with the total loss of the cargo; and that the commonwealth was liable to them for the loss sustained, amounting to ¿7000.

The attorney general pleaded, that the petitioners had * ‘ sustained no damage by the impressment of the vessel and cargo;” and the petitioners took issue.

Verdict, that the petitioners had “sustained damage by the impressment of the vessel and cargo in the declaration mentioned;” and assessed the same as follows, to wit, to the sum of ¿4264. 8. 3%. for principal, and ¿2771. 17. 4j4- for interest,, amounting in the whole to ¿7036. S. 734-”

The court, however, was of opinion that the petitioners were not entitled to interest; and gave judgment for the ¿4264. 8. 3 only.

The attorney general appealed to the court of appeals; but the judgment was affirmed, in April 1794.  