
    John Black et al. executors of Caleb Newbold against Rempublicam.
    The comptroller general lias no power to settle demands arising from torts, or the wrongful acts of any of the officers of the state.
    This was an appeal from the settlement of an account against the commonweath, by the comptroller general, undei the acts of assembly passed April 13th 1782, and February 18th 1785, (3 St Laws, 51, 444.)
    The facts on the evidence, turned out to be these. The testator was seized of an island in the state of New Jersey, called Newbold’s Island, and had on it, a considerable quantity of salted pork, gammons and lard. In the month of December 1776, when the British troops were advancing to this state through New Jersey, the officers of the state gallies moved their vessels up the river Delaware, and seized the above articles to prevent them from falling into the enemies hands, who were then advanced to Bordentown. The captains of the gallies told William Bullen, the testator’s agent then on the island, that he should be fully paid for the provisions, though they could not then give him any receipts, or certificates. A considerable part of the articles seized were sent by commodore Seymour to the council of safety in Philadelphia, which afterwards went to the use of the continental army; part was given to the crews of the navy; part was distributed amongst the militia, who then served with the continental troops; and a part was taken by the troops as a kind of plunder. It was proved to have been customary at that /-ri * time, for the staff officers, as well as those of the army and navy, to seize provisions near the lines, without any particular order for that purpose, and that in many such instances, certificates were given by (he continental and state officers.
    The questions arose, whether the state was properly chargeable in this suit, with the amount, “as articles furnished to “the executive powers of the government, for the use of the “same, or for any other purpose whatever,” and whether the comptroller general ought to have allowed the account.
    It was admitted by the counsel on both sides, and agreed by the court, according to the decision in Respublica v: Sparhawk, (Dali. 363) that the Supreme Court had authority to confirm or alter any proceedings, that came properly before the comptroller general. But if he had no jurisdiction, that this court can have none.
    Mr. Tilghman for the plaintiff and Mr. Bayard for the state, used nearly the same arguments, as were urged in the case of Sparhawk. Dali. 358 to 363.
    The plaintiff’s counsel contended that the greater part of the provisions had gone to the use of the commonwealth, and that it did not comport with the honor and dignity of government, that they who suffered the loss should not receive a compensation from those who enjoyed the benefit. The terms of the law of 13th April 1782, giving the comptroller general power to settle these accounts, were very general and would include this demand. The executive department had, by a kind of common consent, delegated their powers to the officers of the army and navy, and had usually ratified what they had doue by giving certificates, and directing payment. It is doing no violence to the words of the act, to suppose the acts of those, who seized property for the public benefit, as the acts of the executive powers, who sanctified the same. The delivery to a servant in the common course of dealing, is sufficient to charge the master. 1 Stra. 505, 506. So though the articles are not delivered over to the master. Ibid. 480.
    
      E contra
    
    it was urged for the state, that if this demand can be at all sustained, it must be as a contract for articles furnished, by order of the legislative • or executive powers. As to the executive powers giving such order, it must necessarily be supposed to be grounded on some lawful exercise of authority given * them by law, or the proper powers of [-*442 their department. None such can be pretended in the <- present instance, nor indeed that the'executive department gave the orders to seize. It never could have been the intention of the legislature, that the comptroller general should have the enormous power of settling all claims against the state for injuries done to individuals, in the course of the military operations during the late war. What a flood of claims would spring from a contrary doctrine! It would be too great and too dangerous a jurisdiction for any one man to exercise. He cannot settle claims for depreciation on certificates, for the emissions of the paper money of 1785, or that issued before, or for demands due from persons attainted, whose property has been sold by law. The commonwealth is not responsible for the tortious acts of its officers. Here the proper remedy was trespass against the persons who did the injury, not assumpsit against the state. A contract implies the agreement of two minds, which does not exist in this case. The militia when in service, were victualled and paid as continental troops. Journ. of Cong, for 1776, pa. 281, 509. The chief part of the provisions seized went to the Use of the continent, and the application should be to congress for relief. But if any part of the articles are chargeable to this state in particular, recourse must be had to the legislature, who only can do complete justice. -
    
      Pro Repub.
    
    were cited 1 Black. Com. 241, 242. No one is superior to the sovereign power; every jurisdiction implies superiority. The sovereign is not amenable in any court, unless by consent. 3 Black. Com. 254. The modes of obtaining redress from the king is by petition de droit or mon-strans de droit, x Term Rep. 176. Whoever now in England supplies the public, trusts the parliament.
   Per curiam.

It has been rightly agreed on all hands, that we have no jurisdiction, unless the comptroller general had under the act of 1782. The' executive powers specified in that act, must certainly be intended the civil executive. And the question here is, whether the articles were furnished by order of the executive. •

It is clear, there was no contract between the executive department and Caleb Newbold. The captains of the gallies were excusable in removing the provisions, lest they should fall into the enemies hands; but still in law it must be considered as a tortious act. They were not authorized to do it, by the directions of their superiors. Indeed it is impossible to suppose the executive of Pennsylvania could direct them *1431 to se^ze provisions *ón Newbold’s Island, in a sister J state. Their powers did not reach thither, nor did they ever exercise jurisdiction there. But it is not pretended there was such an express authority given them.

We are fully satisfied, the legislature of Pennsylvania never meant to give the comptroller general a power to settle demands of this nature, arising from torts or wrongful acts of any of their officers. The remedy of the plaintiffs, if any of the provisions have come to the particular benefit of the state, is by application to the legislature, who have reserved these extraordinary powers to themselves. And where the property has gone to the use of the union at large, the parties must resort to congress, who will unquestionably do them justice, upon the proper proofs being made.

Verdict pro República.  