
    The Attorney-General (in Behalf of the Commonwealth) v. Turpin.
    Tuesday, 18th April, 1809.
    Act Concerning; Auditor and Treasurer — Construction of. — The remedy given by the 6th section of the act passed the 15th of December, 1792, “to reduce into one the several acts concerning- the Auditor and Treasurer,” is not confined to matters of account, but extends to every right in law or equity which any person is entitled to demand of the Commonwealth.
    
      Attorney General — Bill against — Waiving Answer on Oath — Effect.—A bill exhibited in the High Court of Chancery, against the Attorney-General as representing the Commonwealth, but not requiring him to answer on oath, was, in this case, received as equivalent to a petition to that Court.
    Eminent Domain — When Title Passes — Return of Writ of Ad Quod Damnum. — The lawful emanation, execution and return of a writ of ad quod dam-num to value land intended to be applied to public uses, immediately devests the title of the individual owner to the land so valued, and transfers it to the Commonwealth in full and absolute dominion: such owner remaining entitled only to the valuation money and damages assessed by the Jury.
    Same — Rights of Owner — Interest on Valuation Money —Effect of Revaluation. — Interest is not to be allowed on such valuation money or damages, unless the claimant applied to the Auditor for his warrant, and was refused it; or, having obtained it, was refused payment at the Treasury; but, where, by the consent of the original owner, part of the land taken for public use was directed, by a law, to be revalued and restored to him, and the residue to be retained by the Commonwealth; but, through the default of the agents of the Commonwealth, such revaluation has not been made; the Court of Chancery should direct it now to be made, and decree the value so ascertained, (of the residue,) with interest, from the time when such revaluation ought to have taken place, to be paid by the Commonwealth to such original owner.
    Doctor Philip Turpin exhibited his original bill, in the High Court of Chancery, against the Attorney-General, stating that the Directors of the Public Buildings, appointed by an act of the General Assembly, passed in the year 1779, “for the removal of the seat of government from Williamsburg to Richmond, did, by virtue of the powers vested in them, sometime in the year 1783, lay off about thirty acres of the complainant’s land on Shockoe Hill, for the use of the public, and cause it to be valued by a Jury ; one parcel of which was estimated at 1,0001. and the other at 4,0001. but, in consequence of the deranged state of the finances, he did not apply for payment at the public treasury ; that in consideration of the design to erect the public buildings on the complainant’s land, he made a donation to the Commonwealth of two acres, near the brick house then used as a Council Chamber ; that the directors having abandoned their intention to erect the public buildings *on his land, he presented a petition to the Legislature, praying that they would determine what part of his ground was intended for public use, and that he might be compensated for the part retained ; not expecting, however, that more than a small part would be restored to him ; nor even that, without compensation for the loss sustained, by its depreciation in value while held by the public: that, in consequence of this application, an act passed in 1787, authorising the Directors of the Public Buildings, to convey to the complainant certain lands ; and, accordingly, they, on the 9th of April, 1788, came to a resolution, declaring that the interest of the Commonwealth, in the whole of the land which had been appropriated to the use of the public, should be released to the complainant, except two acres, to be laid off so as to include the garden annexed to the Governor’s house; that these two acres were much more valuable than those originally given ; for the use of which the complainant had been receiving rent from the public. As the object of the donation had failed, the bill prayed that the two acres originally given might be restored, without the Commonwealth's claiming compensation for them in the two acres appropriated to the Governor’s garden; and that satisfaction might be made for the diminution in the value of the other lands. The bill calls upon the Attorney-General to answer the premises; but, not as in ordinary cases, upon oath.
    To this bill the Attorney-General filed a plea, demurrer, and answer.
    The plea stated, that the complainant being conscious that he could not by due process of law recover the two acres of ground, claimed by his bill, had elected the General-Assembly to decide upon his title ; and their decisions, being against him ought to bar his claim.
    The demurrer insisted that his remedy was strictly and purely a legal one, and therefore he ought not to be aided in a Court of Equity.
    The answer denied any knowledge of the terms on which the donation of the two acres was made, by the complainant, to the directors; and did not admit such donation to *have been on condition, that the public building should be erected thereon.
    It appears, from the evidence, there was a competition between the principal proprietors of lots on Richmond Hill, and those on Shockoe Hill, for the site of the public buildings. Colonel Richard Adams offered to make a donation of two acres on the former ; and Doctor Turpin, of an equal quantity on the latter. The proposal of Doctor Turpin was accepted1; as one of the directors (Colonel Goode) says, under a full persuasion that the public buildings, or some part thereof, would be erected thereon. Other directors state their belief, that the two acres were given by Doctor Turpin, in consequence of a similar offer having been made by Colonel Richard Adams; and they all agree that the donation was made after the writ of ad quod damnum was executed ; and that although the public buildings were not placed on the two acres given by Doctor Turpin, yet they were erected contiguous to other lots of his, which greatly enhanced the value of the property. The exchange of the two acres originally given, for those occupied as the Governor’s garden, was considered an accommodation to Doctor Turpin, as it enabled him to effect an advantageous sale of them, (with lands adjoining,) to Colonel John Mayo; but it appears, that Doctor Turpin was always opposed to such exchange.
    The Chancellor (the late Mr. Wythe) overruled the plea and demurrer; and being of opinion “that the complainant was entitled in equity to restitution, by the Commonwealth, of the ground demanded by his bill, decreed that the tenant in possession thereof, holding the right of the Commonwealth only, in any action to be commenced for recovering such possession, and the mesne profits, shall not plead, or, on trial of an issue, give in evidence, the legal title of the Commonwealth claimed by virtue of the acts of the General Assembly, and the donation mentioned in the bill exhibits ; and that the plaintiff and his rightful successors be quieted in their possession, after it shall have been vindicated and obtained.”
    ' *From this decree, the Attorney-General appealed to this Court.
    The Attorney-General, for the Commonwealth.
    Call and Randolph, for the appellee.
    For the Commonwealth, it was contended, that such a suit as this could not be brought. It was an priginal bill filed against the Attorney-General, as representing the State. The Commonwealth cannot be sued, in any case, except where the law has authorised it; and then the suit must be brought in the form prescribed by law. No State can be sued otherwise. This results from the very nature of government. In cases not provided for by positive laws, all claims against a State must be subjects of treaty or negotiation. Suppose an individual has a claim against the United States, can he sue Congress, or the United States generally? Certainly not.
    The law authorising appeals from the decision of the Auditor, is necessarily confined to matters of account, which regularly come before him. But this is a suit for the recovery of land, which never could come before the Auditor in any shape : he would be incompetent to decide upon the right of property, or to award a writ for the possession.
    For the appellee, it was argued, that this case emphatically belonged to a Court of Equity. The writ of ad quod damnum, and the inquest of the jury thereon, had the effect of devesting the legal title of Turpin, and of transferring it *to the Commonwealth. If, therefore, Turpin had brought an ejectment, the ad quod damnum would have been set up as a bar. Every injunction to a judgment of the Commonwealth, is an original suit; yet there is no act of Assembly which authorises it. Nevertheless, such bills are constantly entertained, because there is no other possible mode of protecting the citizen.
    This is an injunction, from its very nature ; being intended to prevent the Commonwealth from setting up the writ of ad quod damnum. It is then the ordinary case of a bill of injunction ; and, if it can be filed at all, it must be in such a case as this.
    Again, the latter part of the section, in the Auditor’s law, before cited, expressly authorises a petition in behalf of any person, who is entitled to demand any right against the .Commonwealth, either inlaw or equity. The remedy, then, is not confined to mere matters of account; but embraces every possible demand, founded on contract, which a citizen may have against the State ; and may be assimilated to the ordinary mode of redress, in England by petition of right. 
    
    Tuesday, May 2d. The Judges pronounced their opinions, and decree.
    JUDGE TUCKER. By the act of May, 1779, c. 21, “for the removal of the seat of government to Richmond, ’ it was enacted, that six whole squares of ground, surrounded each by four streets, and containing all the ground therein, situate in the town of Richmond, and in an open and airy part thereof, should be appropriated to the use and purpose of public buildings. And that reasonable satisfaction might be paid for all such lots of ground as might be taken and appropriated for that purpose, the Clerk of Henrico County *was author-ised and required, on application of the Directors of the Public Buildings, appointed by virtue of that act, to issue a writ, in the nature of a writ of ad quod damnum, directed to the Sheriff of Henrico, commanding him to summon a Jury of freeholders, to meet upon the said lots, and, to the best of their skill and judgment, to value the same in so many several and distinct parcels, as should be owned and held by several and distinct owners and tenants, and according to their respective interests and estates therein ; and that, after such valuation made, the Sheriff should forthwith return the same under the hands and seals of the said Jurors, to the Clerk’s office of the said County, and that the rights and property of the said owners and tenants in the said lots of land, should be immediately devested and retrans-ferred to the Commonwealth, in full and absolute dominion, any want of consent, or disability to consent, in the said owners and tenants, notwithstanding.
    On the 8th day January, 1783, a Jury made the following return to the writ, (of which there is no copy in the record,) under their hands and seals.
    “Agreeable to a writ of ad quod damnum, of the Court of Henrico, we of the Jury are of opinion, that the first lot, containing nearly thirteen acres of land, whereon the improvements stand, is worth the sum of 4,0001. the second lot, containing about fifteen acres of land, we are of opinion is worth 1,0001. Given, ” &c.
    In December, 1787, the General Assembly passed an act authorising the Directors of the Public Buildings in the City of Richmond, to convey to P. Turpin certain lands ; which act recites that it had been represented to the General Assembly that the Directors of the Public Buildings had appropriated, for the use of the public, certain lands within the City of Richmond, the property of Philip Turpin, part whereof are since found by the said Directors to be unnecessary for the said purpose. And that the said P. Turpin had made application to the present General Assembly to authorise and require the said Directors, in behalf of the Commonwealth, to convey and release to him so much of the *said lands, as they may judge unnecessary for public use. It was therefore enacted, that the said Directors, or a majority of them, should, and they were thereby authorised and required to execute a deed for conveying and releasing to the said P. Turpin, and his heirs, all the right, title and interest of this Commonwealth, in and to so much of the lands so appropriated, as the said Directors should judge unnecessary for public use.
    And it was further enacted, that the Director should cause the lands deemed unnecessary for public use, previous to the execution of a deed for the same, to be valued by a Jury, in like manner as is directed by law for lands taken and appropriated for the use of the public, within the said City, and should return such valuation to the Court of the County of Henrico, there to be recorded. “Provided, that the Jury in estimating the value of the said land shall have regard to its comparative value, with the other lands, and their former appraised value.”
    At a meeting of the Directors on the 9th of April, 1788, at which the Governor and five members (all of whom, except one, appear to be now dead) were present, it was resolved, that, pursuant to the preceding act, a deed ought to be executed to P. Turpin, for conveying and releasing to him and his heirs, all the right, &c. of the Commonwealth, in and to all the lands belonging to the said P. Turpin, appropriated by the Directors of the Public Buildings for the use of the public, except the two acres ceded to the General Assembly by the said P. Turpin, which the Directors are of opinion ought to be laid off so as to include the garden used at present by the Governor, as annexed to his house.
    These are the only documents exhibited in the record which have any legal operation and effect in the case before us. I therefore throw out of consideration the subject of Doctor Turpin’s various petitions to the General Assembly, and the reports of the committees thereon; as also Doctor Turpin’s overtures, communicated through Col. Goode; and whatever that gentleman or Mr. Hay may suppose to have been the effect of these overtures on the opinions *of the Directors, individually ; since we have no other evidence of their collective and legal agency, than what appears from the portion of the record which I have extracted.
    The case thus stript of all extraneous matter, seems to be very short and simple. By the emanation, execution, and return of the writ in the nature of a writ of ad quod dam-num, due solemnities being observed, (of which there is no evidence in this record, nor any complaint that they were not observed,) the title of Doctor Turpin, was in the language of the act, immediately devested and transferred to the Commonwealth, in full and absolute dominion. Prom that moment Doctor Turpin had no more right or title to the lands themselves, than any other citizen of the Commonwealth ; of course, any overtures of his, to give to the Commonwealth such and such a particular spot, unless such gift had been accepted by the General Assembly, or authorized by them, was as vain, as if he had offered them the dominion of any other State, or of any Principality or Kingdom in Europe. He was entitled to compensation, according to the estimate of the Jury, for all the lands which were taken from him, but to nothing more. This compensation was, by the original law, in which no alteration seems to have been made, to have been paid by the treasurer to him, on warrant from the Auditors. Whether he ever applied for, or obtained, or was refused a warrant for the same, at any time, does not appear. He seems to have preferred addressing himself to the Legislature, to pursuing the course pointed out for making him compensation. If he neglected to apply to the Auditors for a warrant, that neglect puts an end to his claim for compensation, by way of interest, on the amount of the original valuation of the Jury. By asking and accepting the return of the lands, which were deemed unnecessary for the public use, he must be considered as waiving also all compensation in the nature of damages, for taking the lands for that purpose, except such as the Legislature might, in their discretion, make him for the same. And if, after the decision of the Directors was known to him, he had had it in his *own power to ascertain the value of the two acres retained, and to get paid for them, as directed by the original act of Assembly, I am inclined to think that circumstance would, in a Court of Judicature, have deprived him of any right to interest, even upon the sum at which the lot reserved might have been valued. For the public so far differs from a private debtor, that the latter is bound to seek his creditor to save his penalty, or to avoid the payment of interest upon a just and liquidated debt, ordinarily carrying interest. But the public is under no such obligation ; and if the payment be delayed ever so long, it is no reason for giving interest against the public, unless the debt was liquidated, and the money demanded ; nor then, perhaps, in a Court of Judicature, unless the law expressly author-ises the allowance of interest, or the payment on demand ; because it is a principle in public polity, which cannot be departed from, (at least by the Courts of the State against which a claim is preferred,) that sovereign States can only be bound according to the tenor of their own engagements. Now here is no provision in the law, for the payment of interest upon the original valuation. And, though as a legislator, I should undoubtedly give it, in the present case, on the value of the lot reserved, from the time it was first taken for public use ; as a Judge, I think I cannot, except from the period when the Directors of the Public Buildings, pursuant to the authority given them by the act of 1787, had located (if I may use the expression) the particular spot they meant to reserve for the use of the Commonwealth, and had released the residue to Doctor Turpin. The valuation of the part to be recon-veyed, as directed by that act, (if it had been made, as it ought to have been, by order of the Directors,) must have ascertained the value of the part reserved ; and having been neglected by the Directors, Doctor Turpin, from that period, could not apply to the Auditor for a warrant for his money, because the amount was uncertain, and continued uncertain through the default of the agents of the Commonwealth. From that period, therefore, I consider his right to interest as commencing, 
    
    
      *Upon the merits, so far as they are within the power of this Court to minister relief, I conceive Doctor Turpin entitled to full compensation for the value of the two acres reserved, as the same may be ascertained by a Jury, pursuant to the directions contained in the act of 1787, c. 78, with interest as just mentioned. But the points made by the Attorney-General make it necessary to consider, whether, upon the present proceedings, we can even grant relief so far.
    The principle contended for by the Attorney-General, and admitted, I believe, by every writer on the law of nations, is. that the Commonwealth can neither be made liable to its own citizens, in its own Courts, beyond the tenor of its own engagements, nor be sued in its own Courts in any other manner than what the law expressly permits. The former of these principles was certainly recognised in the case of the Commonwealth v. Colquhoun and others, last April term. I do not know whether there has been any express decision in respect to the latter. In the case of Beaumarchais v. the Common weal th, this Court was unanimously of opinion, that an appeal lies from the decision of the Auditor, to the High Court of Chancery, or to the Richmond District Court, according to the nature of the case, in all cases whatsoever. But that is not the present case. Doctor Turpin does not appear.to have made any application to the Auditor for a warrant; 'nor is this case founded upon an appeal for a refusal. It is an original bill in Chancery, (in the usual form as against private defendants,) exhibited against the Attorney-General of the Commonwealth, and praying that he may make answer to all and singular the matters and things therein contained; but it does not demand such answer to be made on oath, in which it differs essentially from ordinary bills. The act concerning the Auditor and Treasurer, not only allows an appeal from the judgment of the Auditor in matters of account, but allows a petition in all other cases, to the High Court of Chancery, or the District Court, holden at the City of Richmond, to any person who is entitled to demand against the Corn-monwealth, any right in law *or equity,  That the Attorney-General should have notice of all such petitions, is a point not to be controverted ; and though, perhaps, some serious objections might have been made to the present mode of proceeding, if, being called upon to answer upon oath, he had refused to do so, and any steps had been taken, as in ordinary cases, in consequence of his not answering, yet, as nothing of that kind has occurred in the present case, I am unwilling to take any exception against the form of the proceedings, though I am not inclined to establish them as a precedent in cases which may hereafter arise.
    
      
      See monographic note on “Eminent Domain” appended to JamesBiver and Kan. Co. v. Thompson and Teays, 3 Gratt. 270.
    
    
      
       Rev. Code, v. 1, c. 85, p. 140, sect. 6. “Where the Auditor acting' according to his discretion and judgment, shall disallow, or abate any article of demand against the Commonwealth, and any person shall think himself aggrieved thereby, he shall be at liberty to petition the High Court of Chancery, or the District Court, holden at the city of Richmond, according to the nature of his case, for redress; and such Court shall proceed to do right thereon; and a like petition shall be allowed in all other cases, to any other person who is entitled to demand against the Commonwealth, any right in law or equity.” — Note in Original Edition.
    
    
      
       The arguments of counsel, on the merits of this case, occupied much time, and were accurately noted by tbe reporters. But, as the case is very fully considered in the opinions of the Judges, we have restricted our publication of the argument to the construction of the act of Assembly alone.— Note in Original Edition.
    
    
      
       Edit. 1785, p. 100.
    
    
      
       Sessions Acts, c. 78.
    
    
      
       Vide 8 Call, 176, 179, Commonwealth v. Beaumarchais.
    
    
      
       2 Hen. & Munf. 213.
    
    
      
       3 Call, 122.
    
    
      
       L. V. edit. 1794, c. 85. s. 6.
    
   JUDGE ROANE.

This is a bill brought by the appellee against the Attorney-General, in the High Court of Chancery. After having shown, in certain, how the lot of land in controversy, (the Governor’s garden,) formerly his property, became vested in the Commonwealth ; it having been appropriated and condemned by the Directors of the Public Buildings, and afterwards commuted by them for another lot given by him to the public in consideration of erecting the public buildings thereon, which condition, however, was never complied with ; he prays that the donation lot may be restored to him without retaining compensation in the lot (the garden) now in question ; that compensation may be made him for the loss sustained by the diminution in the value of his land, (thirty acres,) detained for a considerable time by the public, and, afterwards, except the Jot in question, restored to him ; and for general relief. The prayer is, therefore, substantially, either for the garden itself, specifically, or its value, in consequence of the grounds of equity on which his claim is founded; and for compensation for the injury as aforesaid. On none of those grounds, except for the value of the lot, could an application to the Auditor have been proper ; nor, indeed, was it proper as to it, considering that the question respecting it arose out of a complication of facts and circumstances, making it a fit case for the exclusive cogni-sance of a judicial tribunal; and, especially, as no apportionment of the value of that lot had *ever taken place, whereby the Auditor would have been enabled to ascertain the extent of the claim. The non-existence of such apportionment, while it presents an insuperable bar to the progress of the Auditor, shews the necessity for an application to a Court of Equity.

This then being a case in which an application neither was, nor properly ought to have been made to the Auditor in the first instance, a question arises whether the ordinary jurisdiction of the Court of Equity ceases to exist, as to it, in consequence of the sovereign character of the Commonwealth.

In the case of the Commonwealth v. Beaumarchais, it was held, with great force and justice, by this Court, that every just government ought to provide a tribunal competent to decide all claims and demands against itself. The president, in delivering his opinion in that case, seems to put the petition of appeals from the decision of the Auditor upon the ground of the petition of right in England ; and adds, that, although in high prerogative times, it was held necessary that the king should underwrite, “let justice be done to the party,” yet that that has been long dispensed with, and the petition of right resorted to as an ordinary proceeding. In that case indeed, it was not particularly decided (because it was unnecessary) that the latter part of the sixth section of the Auditor’s law extended to cases other than pecuniary, or to cases in which a resort to the Auditor was not proper in the first instance. It is certain, however, that the general scope of the decision seems to go that length; and most of the counsel on both sides seem to have considered that part of the section as properly applying to cases not of a pecuniary nature.

There can certainly be no good reason with a just government why this should not be the case ; and the words are extremely comprehensive. The clause is, “where the Auditor, acting according to his discretion and judgment, shall disallow, or abate any article of demand against the Commonwealth, and any person shall think himself aggrieved thereby, he shall be at lib-erty to petition the High *Court of Chancery, or the District Court, holden at the city of Richmond, according to the nature of his case, for redress ; and such Court shall proceed to do right thereon ; and a like petition shall be allowed in all other cases to any other person who is entitled to demand against the Commonwealth any right in law or equity.” This section is literally taken mutatis mutandis from the 5th section of the Auditor’s law of 1778. Under the act of 1778, the jurisdiction of the Courts might be less clear than under the act of 1792, in a case like the present ; for as that act had, in a previous section, pointed out the cases, particularly, in which the auditor should act, it might have been argued that the general words, now in question, were put in to embrace other cases of like character, which had not been enumerated. But those general words are kept up in the act of 1792, after a general grant of power to the Auditor to settle and audit “all claims and demands whatsoever against the public, arising under any law or resolution whatsoever.” The first part of the 6th section allowing a petition is commensurate with this power, and grants redress where it is abused : the latter words, therefore, mean nothing, unless they go beyond it. The expression “like petition,” only means a petition to the Court of Chancery or District Court, respectively, as the case may be, and is not tied down to the case of a claim rejected by the Auditor. A broader privilege is granted by the justice of the Legislature ; that any person entitled to demand “any right in law or equity” against the Commonwealth, may prefer his petition, and that the proper Court shall “proceed to do right thereon.” The actual case before us has a strong analogy to those in which petitions of right are proper and admissible in England : the legislative provision now in question may be considered as a general license “that justice shall be done the party:” and the legislature, having thus attained the essence of the transaction, is regardless of form. Consequently it does not adopt the modes and forms of proceedings in England, applicable to petition on right, but allows a party to proceed as in other cases by a bill in equity : such has been *the uniform practice on this subject from the beginning, and there is no doubt but that the term “petition” may well be satisfied by a bill in equity.

I shall therefore consider this case as if the appellant were a private person ; and this brings us to the merits.

With respect to the plea and demurrer in this case, they were both rightly overruled : the first, because an application to, and decision by, the .Legislature, is no bar to the equity of this Court ; and the last, because, if the appellee has any title to the lot in question, it is an equitable one only, and not a legal one.

I will next consider the case upon the answer and proofs. The donation of the two acres was made on a condition, which has failed; or, at least, under a belief entertained by one party, and communicated to and not gainsayed by the other. Col. Goode was a Director at the time, and acted as the friend and agent of Turpin in making the offer of the donation, and his testimony is strong to the above effect. Mr. Hay was not a Director at the time, and nothing said by him, or any other, can do away the above result as depending on Goode’s testimony. In the event that happened, that the Public Buildings were not placed on Turpin’s land, he did not contract to cede to the Commonwealth any thing. The Directors therefore were mistaken in 1783 in considering the two acres as a donation, and commuting it for the lot in question. Yet they considered (under the act of 1787) the lot in question as necessary for the public use ; they have not reconveyed it; and, thinking it necessary, ought not to have reconveyed it: but Mr. Turpin is entitled to be paid for it, as if the donation of the other lot had never been made.

In consequence of the Directors’ restoring to Turpin all his other lands, under the act of 1787, except the lot in question, and retaining it as a donation, Turpin was to receive no money from the public, and therefore, I presume, no valuation has been made as directed by the act of 1787: it was to no purpose to value and apportion the land, as Turpin was to receive nothing therefor. The Directors having *erred to his prejudice, as above mentioned, I am of opinion that the lot in question (or the returned land, it is immaterial which) should be valued by the rule laid down by that act, and Turpin be paid therefor, with interest from the date of the act of 1787. As to prior interest, it is not shewn that application was made by Turpin for the money which, under the act of 1778, he was entitled to demand from the public. It further appears, that up to that time Turpin was willing to consider the appropriation and valuation of his land as not conclusive, and was ever willing, and perhaps desirous, to take back such part of his land as was not wanting for the use of the public. Being, therefore, perhaps, not desirous to receive the money, and, in fact, not having applied therefor, he is not entitled to interest. As to any loss sustained in the sale of his land, in consequence of the detention of it by the public, the act authorising a reconveyance to him thereof was founded on his application. He petitioned to take back the land ; and this must be considered as a relinquishment of any damages accruing to him from the detention, if, in fact, there were any.

Upon the whole, I am of opinion that Turpin is entitled to a decree for the value of the lot in question, with interest from the date of the resolution of the Directors by which the two acres were retained for the use of the public ; and that the decree of the Chancellor should therefore be reversed, and reformed pursuant to the foregoing ideas.

JUDGE EEEMING.

Concurring with the other Judges on the merits of this cause, I have only to pronounce the following decree, which has been agreed upon as the unanimous opinion of the Court. The Court is of opinion, “that the decree of the Superior Court of Chancery is erroneous in this, that the appellee is not entitled, to the relief given by the said decree ; therefore it is decreed, &c. that the same be reversed, &c. and that the appellee pay to the appellant the costs, &c. And this Court proceeding, &c. is further of opinion, that by the emanation, execution, and return of the writ of ad quod damnum, in the record mentioned, *the title of the appellee was immediately devested and transferred to the Commonwealth in full and absolute dominion ; and therefore that any overtures, or promises, made by him to cede to the public any particular spot within «the area of the lands comprised within the inquisition taken upon the said writ, or the price thereof, unless the same had been accepted by the agents of the Commonwealth duly author-ised, and the condition annexed to such cession duly complied with, were not binding on the said Philip Turpin, or the Commonwealth, and ought to be wholly disregarded. The appellee according to the terms of the act before mentioned, was, immediately upon the return of the inquisition to the clerk’s office, entitled to demand a warrant from the auditor, and to receive payment from the Treasurer, for the price of the lands comprised in the inquisition aforesaid. He does not appear to have made any application therefor: by which neglect, as well as by asking from the General Assembly, the return of the lands which should be deemfed unnecessary for the public use, he must be considered as waiving all right to interest on the principal sum, and as waiving also all compensation, in the nature of damages, from the Commonwealth, for taking and detaining the lands for public use, except such compensation as the General Assembly might, in their discretion, choose to make him for the same. When the Directors of the Public Buildings, pursuant to the act passed in 1787, intituled‘An act authorising the Directors of the Public Buildings in the city of Richmond, to convey to Philip Turpin certain lands,’ declared, by a resolution of the 9th of April, 1788, that a deed ought to be executed for conveying and releasing to him and his heirs, all the right of the Commonwealth in and to all the lands comprised in the inquisition aforesaid, except two acres, which the said Directors were of opinion ought to be laid off so as to include the garden used at present by the Governor, as annexed to his house, they ought to have had the same immediately laid off, by metes and bounds, and caused the residue of *tbe lands comprised in the inquisition aforesaid to be valued by a jury, as part of the lands in the first, or second lot specified, in the original inquisition of the 8th of January, 1803, [1783,] (according as it shall appear to the said Superior Court of Chancery, that the said two acres were a part of the lands contained in the said first or second lot, or in both), on the principles stated in the aforesaid act of 1787, and such valuation to be returned to the Court of Hen-rico County; which sum, being deducted from the original valuation of the whole tract, would have ascertained the amount of the principal money due and payable to the said Philip Turpin for the two acres retained, as aforesaid; but the said Directors having neglected to do so, the appellee had it not in his power, thereafter, to demand a warrant from the Auditor, or, payment from the Treasurer for the value of the said two acres reserved for public use. From that period, therefore, this Court is of opinion that the appellee is entitled to interest as a compensation, for the delay of payment, which did not happen from his own default or neglect, as before mentioned; therefore, it is decreed and ordered, that the Commonwealth pay to the appellee, the value of the said two acres, retained for public use, to be ascertained by a jury as aforesaid, with interest thereon, at the rate of five per centum per annum, from the ninth day of April, 1788, until the same shall be paid. And the cause is remanded to the Superior Court of Chancery aforesaid, for a decree to be made therein, pursuant to the principles of this decree.” 
      
       Rev. Code, V. 1, p. 140.
     
      
      ta) Cti’rs. Revisal, p. 81.
     
      
      Cb) See 3 Bl. Com. 256.
     
      
       Commonwealth v. Beaumarchais.
     
      
       It is 1803, in the order book, but it is evidently a mistake. It should be 1783. — Note in Original Edition.
     