
    *Innis, Attorney General, &c. v. Roane and Others.
    [October, 1797.]
    War — Evidence of End — Proclamation. — The proclamation of government is the only evidence that war is at an end, and peace established.
    Same — Same—Same.—Por the constituted authorities are the arbiters of peace and war ; and their declaration that war is ended is decisive ; and no averment lies against it.
    Same — Supernumerary Officers — Retirement before Peace Proclaimed. — Therefore, the supernumerary officers who retired after the date of the prelim - inary articles between Great Britain and the U. States, and before peace was announced by proclamation, were not entitled to the half pay promised by the act of 1779, to those who served to the end of the war.
    Supernumerary Officers — Who Entitled to Half Pay.— The half pay promised by that statute was a bounty; and therefore, the officers who claim it, must shew exact performance, by having returned into service when called, and serving through the whole war afterwards.
    Bounties — When Claimant Entitled to. — Por substan-1 tiai performance never entitles to a bounty, .as the claimant has no equity.
    Contracts — Mutual Obligation. — There can be no contract without mutual obligation.
    Judgment of Reversal — Without Prejudice — Effect When New Case Does Not Differ from Former. — if a judgment of reversal states that it “is not tobar or prejudice any future claim of the appellee, made on fuller proof to the auditor,” and the new case does not differ from the former, the first judgment concludes the cause.
    During the revolutionary war, the American armies consisted partly of troops raised for the continental service expressly, and partly of troops raised by particular states, for the proper defence of the state.
    By an act of assembly passed at the Ma3" session, 1779, Virginia raised a body of troops of the latter kind, 10 Hen. Stat. 18; and, by another act, passed at the same session, it was declared, that the officers on continental or state establishment, “who shall serve henceforward, or from the time of their being commissioned, until the end of the war; and all such officers who have, or shall become supernumerary on the reduction of any of the said battalions, and shall again enter into the said service, if required so to do, in the same or any higher rank, and continue therein until the end of the war, shall be entitled to half pay. during life, to commence from the determination of their command or service. 10 Hen. Stat. 25. By a subsequent act of assembly, passed at the March session 1781, two legions were raised for the defence of the state; and were to “receive the pay of continental *troops whilst in service or under discipline, and half pay at all other times, during the existence of the said legions. 10 Hen. Stat. 391.
    On the 9th of February, 1783, the commanding officer at York, in consequence of an order of the executive, directing him to apportion the officers to the number of privates, proceeded to deraign the existing establishment, and to arrange a new one, according to the number of privates agreeable to the said order of the executive.
    By an act of assembly, passed at the October session 1782, it was enacted, “that all soldiers who have entered in the two legions, raised for defence of this state, under the acts passed in the year one thousand seven hundred and eighty-one, shall be, and they are hereby permitted to enlist in this state’s quota of continental troops; provided they give up all claim to any bounty, pay, or emolument, accruing to them under the said acts.” It then proceeds to direct the executive to put money into the hands of recruiting officers to make such enlistments. After which it adds, ! ‘and the commanding officers of the said legions are hereby empowered to discharge any soldiers of the said legions, who will give up the bounty and pay which they may claim under the aforesaid act; and the executive are hereby authorized to disband, by proclamation, the said legions, whenever they may find necessarj' or expedient. ” 11 Hen. Stat. 133.
    And by another act of the same session, it was enacted, “That the governour, with the advice of the council, may appoint proper persons to enlist into the continental service, all, or so many of the men composing the legion at the present commanded by colonel Dabney, as shall be willing to serve therein for the term of three years, or during the war: Provided, always, that nothing herein contained shall be construed to prevent the governour, writh the advice of council, from ordering such part of the said legion who may be willing to do duty on board of the barges or other armed vessels fitted for the defence of the bay, or if it should be ^thought necessary, to the defence of the western frontier of this commonwealth. And be it further enacted, That the governour, with the advice of council, is hereby empowered and required, in case the said legion be reduced by enlisting into the continental or other service, to direct the horses of the said legion to be sold, and the money arising therefrom to be paid into the public treasury. 11 Hen. Stat. 170.
    Upon the 20th of February, 1783, the council came to the following resolution, “The board having had under their consideration the arrangement of officers to command the state troops, do approve of the same; and advise his excellency to write to colonel Dabney, acquainting him thereof, arid directing that the supernumerary officers retire on half pay.”
    On the 24th of February, 1783, the council made an order to this effect, “The gov-ernour is advised to call on the paymasters of the state legion for monthly returns of the pay due the troops, and to direct the commanding officer of the said legion to discharge all the dragoons who have not reenlisted, except those retained for expresses.”
    Upon the 27th of March, 1783, the council made an order to this effect, “The gov-ernour having stated to the board, that in consequence of the reduction of the state legion, the number of officers was so diminished as not to leave enough to do the duty of the garrison at York, unless those who held staff appointments should be directed to take command and perform their duties as commissioned officers, it likewise appearing to the board that the duties of adjutant and quartermaster, may for the present be discharged by an active sergeant major and quartermaster sergeant, under the inspection of the commanding officer at the post, it is advised that the adjutant and quartermaster of the state legion be directed to relinquish their staff appointments, and to resume their commands in their respective companies.”
    On the 24th of April, 1783, the state troops were all discharged by an order of the executive.
    *In 1790, the following act of assembly passed, “Whereas doubts have arisen, whether certain officers herein after described, have a right to the compensation of half pay; for the removal of such doubts, Be it enacted by the general assembly, That the same compensation of half pay, should be extended to those officers of the state line, who continued in actual service to the end of the war, as was allowed to the officers of the continental line; and also to those who became supernumerary, and being afterwards required, did again enter into actual service, and continue therein to the end of the war; any act or acts to the contrary in any wise, notwithstanding.” Sessions Acts 12, cap. 21.
    The appellees Roane, captain of artillery, Woodson, captain of infantry, Armstead, captain of cavalry, Quarles and Fleet, lieutenants of infantry, Diggs and Savage, lieutenants of cavalry, Graves, cornet of horse and quartermaster, Tinsley, cornet of horse, and Carter, surgeon, were officers in col. Dabney’s said legion, raised under the above mentioned act of 1781, and, in consequence of the new arrangement on the 9th of February, 1783, whereby they were put upon the list of supernumerary officers, retired as such upon half pay agreeable to the order of council of the 20th of February, 1783, ready, as they alleged, to return into service again, if required. In consequence of which, they severally, in the year 1791, applied to the auditor for half pay for life; or commutation of five years full pay, with interest, which he refused; and they appealed to the district court.
    The district court referred the case to the general court; who certified,
    That, under the act of May 1779, the officers then on duty, or who should afterwards be placed on dutjq either in the continental or state service, were entitled to half pay, unless they failed to serve until the end of the war, or, being supernumerary, refused to enter into the service, on a command to that effect; and, “that the respective laws, under which they have been appointed, and the act of 1790, ^'entitle all such persons as are described in the act of 1779, who belonged to the slate line, and who have been appointed since the passing of the act of 1779, to the like allowance of half pay, provided they served to the end of the war, or, being supernumerary, did not refuse to enter again into the service, on a command to do so; and that the troops being disbanded in the month of February 1783, and the preliminary articles of peace being signed before that period, the officers ought to be considered to have served to the end of the war.”
    Whereupon, the district court being of opinion, that the appellees were entitled to the pay they claimed, as they had never refused, after they had retired upon half pay as aforesaid, to enter into service again, directed the auditor to issue certificates accordingly.
    From which judgments, the attorney general appealed.
    The court of appeals being of opinion in each of the cases, “That under the act of assembly, passed in May 1779, intituled-an act concerning officers, soldiers, sailors and marines, and all subsequent acts made respecting them, only such of the general officers of the state army, being citizens of this commonwealth, and such of the field officers, captains and subalterns, serving in the battalions raised for the immediate defence of this state, and such of the chaplains., physic,iaps, surgeons and surgeons’ .mates, as -were "appointed to the said battalions, being citizens of this commonwealth, and not being in the service of Georgia, or any other state, and for whom congress hath not made any adequate provision, and only such of them as actually served thenceforward, or from the time of their being commissioned, until the end of-the war, unless restrained by being prisoners of war, on parol, or otherwise, and also only such of the said officers who became supernumerary on the reduction of the said battalions, and again actuálly entered into the said service, in the same or higher rank, having been required so to do, and continued therein until the end of the war, are entitled to half pay during life, under the said acts, to commence ’''from the determination of their command or service, when the same was duly signified to them by the governour, or executive of this state, and their regiments disbanded in pursuance thereof, after the preliijiinarj' articles of peace between America and Great Britain were signed and notified to. the executive of this state, which appears by the proceedings in council, in evidence in this case, to have been on the 19th day of April, 1783, and the army disbanded in pursuance thereof on the 22d of the said month; and it appearing by the petition of the appellee, that he was a supernumerary officer, and discharged as such on the 9th day of February, 1783, before the said preliminary articles were notified, and the legion to which he belonged, disbanded as aforesaid, and that he did not again enter into the service; and continue therein, until the end of the war, this court is of opinion, that he is not entitled to half pa3* for life, and that the opinion of the general court, and order of the district court thereon, are erroneous,” reversed the order of the district court, and affirmed the opinion of the auditor, with the following addition, “But this judgment is not to bar or prejudice any future claim of the appellee, made on fuller proof to the auditor.”
    In consequence of the saving clause aforesaid in the opinion of the court of appeals, the appellees filed their bill in the high court of chancery, against the attorney general, the treasurer and auditor, stating that they were officers, as aforesaid, in Dabney’s legion. That, in autumn 1782, the governour, having received information that peace would shortly take place, communicated it to the assembly; who, believing that no state troops would be wanting, passed an act authorizing the governour and council to appoint persons to enlist soldiers, from the legion, into the continental service; and that several were accordingly enlisted. That, by virtue of orders from the executive, the old establishment was deraigned, and a new arrangement made on the 9th of February, 1783, which was approved of on the 20th of that month by the executive; whereby the plaintiffs became *supernumerary officers, and retired as such, upon half pay, when notified thereof, on or about the 24th of February, 1783, agreeable to the said order of the executive of the 20th of that month. That no hostilities were committed in.;.Virginia after the first of February, 1783; .and that the plaintiffs had, in effect, served until the end of the war, as their men were taken from them by the act of government, and thej' permitted to retire as supernumerary officers on half pay, liable to be called into service again. That under the acts of 1779 and 1790 they were respectively entitled to half pay, or five years commutation in lieu of it: which the auditor had refused; and therefore the bill prayed a decree'for it.
    The answer of the auditor, admitted that the plaintiffs were officers in the legion; but states that they had left the service before the 22d of April, 1783, which was the true date of the peace; and that the court of appeals had so decided. i
    The court of chancery, being of opinion, “That by the words of the act of the general assembly of the May session, in the 3rear 1779, intituled an act concerning officers, soldiers, sailors and marines, officers who have or shall become supernumerary on the reduction of battalions and shall again enter into the service, if required so to do, and continue therein until the end of the war, shall be entitled to half pay during life, to commence from the determination of their command or service, the officers intended to be provided for were of two classes; one, those who had continued in the service until their battalion was reduced, and their command determined, and were not required to enter again into the service; and the other, those who, after the reduction of their battalion, were required to enter, and did enter, again into the service, and continued in it until the end of the war; and that the said words ought to be intrepreted thus: Officers who have or shall become supernumerary shall be entitled to half pay during life, to commence from the determination of their command, if they were not "^required to enter again into the service and refused to do so; and officers who have or shall become supernumerary, and shall again enter into the service if required so to do, shall be entitled to half pay during life, to commence from the determination of their service; because, by a.ny other interpretation, the words “command or,” in the last member of the sentence, would not only be superfluous, but have no meaning; and because the words, although they may be interpreted in another sense, ought to be interpreted in a sense most beneficial for the officers whom the general assembly were inviting into their service b3’- offers of gratuities the most liberal in their power to make. But this court is of opinion that by the latter part of the act of the general assembly, made in the year 1790, intituled, !an act giving compensation of half pay to certain officers of the state line,’ such of the petitioners as belong to the first of the two classes before mentioned, are so distinguished from officers of the other class, that the petitioners are not entitled to half pay by that part of the act, although the court cannot believe that the general assembly intended to deprive them of it, being unable to divine any reason for the distinction. Nevertheless this court is of opinion that by the former part of the last ■ mentioned act, the officers, who were discharged by proper authority, and no.t required to enter again into service, after the 30th day of November, 1782, that is, in the February following, are entitled to their half pay no less than those who were not discharged before the 22d day of April, in that 3Tear. to whom the compensation for half pay hath_been allowed; because the former may be said, with as much propriety as the latter, to have continued in the service until the end of the war, since they were in the service on the said 30th day of November, when the provisional articles between the United States of America and the king of Great Britain were done, by the seventh article whereof it was agreed that there should be a peace between those parties, and their respective citizens and subjects, and that all hostilities should cease, and by the ninth article ^restitution was agreed to be.made of whatever might be conquered by the arms of either from the other before the arrival of those articles in America: whereas if the end of the war was not before the definitive treaty of peace between the same parties, which was done the 3d of September, 1783, those officers who were discharged before that day, that is, those who were discharged on the 22d day of April, 1783, had not served until the end of the war,” decreed that the auditor should allow “half pay for life or five years commutation, in lieu thereof,” to the plaintiffs, or such of them, as should “appear to be entitled thereto according to the foregoing opinion.”
    The defendants appealed from the decree to the court of appeals.
    Warden for the appellants.
    The cause depends upon the acts of 1779 and 1790: but the appellees bring themselves within neither of them. Not within that of 1779; for the most favourable interpretation requires that they should shew that they had served to the end of the war. An expression which admits of no criticism; but, according to the general sense of mankind, and the opinions of the best writers upon international law, refers to the definitive treaty of peace, and not to the preliminary articles, which did not establish peace. The act therefore ought to be understood to mean not a conditional treaty, as the preliminaries necessarily were, but an actual settled peace, such as if arms were taken up again, it would be a declaration of a new war, and not merely a continuation of the former. But that was not the state of things at the date of the preliminary articles; which in fact were little better than a truce: for more troops were raised, and other military preparations made; and, if hostilities had recommenced, it would not have been a new war. but a continuation of the old. The words “end of the war” in the statute are, therefore, not to be taken in a qualified sense, but according to precise definition, and to mean a final end of hostilities, and the establishment of peace; for, until that period, war still subsisted between the *two countries. This interpretation puts an end to the cause; for the claimants did not serve until peace was established. The objection is stronger under the act of 1790; for that statute distinguishes bétween the officers who actually served to the end of the war, and supernumeraries; giving half pay, to such, only, of the latter as were expressly called into service again, and obeyed the call. The former decision bars the claim; for no new facts are presented to the court; and the change of the tribunal does not help their case. Indeed it may be doubted whether the court of chancery had jurisdiction; for, if the appellees have complied with the acts of assembly, the common law courts were competent to afford them relief; and, if they have not complied, as their claim is founded upon the act of assembly only, they have no equity. The objection is not obviated, by the omission of the auditor and attorney general to plead it; for the court will not suffer the consent of the officers of the commonwealth to prejudice the public rights.
    Randolph, Wickham and Duval for the appellees.
    The former judgment does not preclude the appellees; because it was, by the terms of it, to be without prejudice; and there are other facts now before the court. The defendants consented that the court of chancery might decide the cause; but,» if they had not, it is too late, since the act of 1787, to object the want of jurisdiction after answer, without a plea in abatement. Upon the merits, the question is, what should be considered as the end of the war, under the act of 1779? That act should be favourably expounded for the ap-pellees, according to the practice in England of construing, with benignity, statutes which respect the army and navy, who fight the battles of the country. “End of the war” meant, when such steps had been taken towards a peace, that the parties were bound, and the articles made irrevocable by the persons entrusted to negotiate, Vattel, lib. 4, cap. 2, $ 10; and as the provisional articles declared an immediate peace, and were irrevocable in the sense just *mentioned, before February 1783, the act was satisfied, as the war might then properly be said to have come to an end. There is no resemblance between this case and a truce: which is a suspension of arms for a limited time only; whereas the preliminary articles were for a perpetual peace: The difference between them is settled; the first indicating a return of war, the other a final end of hostilities. Vattel, lib. 2, cap. 12, $ 1S3. The proclamation of congress, founded upon the preliminaries, considered the war at an end; and was, in truth, a notification to that effect. In fact, from January 1783, peace might be considered as established between the two nations, although a more formal promulgation might have been necessary to render it penal for individuals to contravene the treaty. Indeed, that is the sole use of publication; which does not make peace; for that exists frbm the time of the treaty, and the object of annunciation is merely to prevent violation of it by private persons. Vattel, lib. 4, cap. 3, § 24, 25. The definitive treaty went back, by relation, to the articles, as well by diplomatic, as common, law. Ratification is, indeed, the final assent of the parties, but its operation is not confined to the day of the ratifying act; for it looks back to the articles, in the same manner as clauses of uti possidetis do to the state of things before the war; and a contrary construction would take away half the effect of treaties. Vattel, lib. 2, cap. 12. That congress understood the case in the manner we contend for, is proved by their journals and public acts. Thus prisoners captured at sea were actually set at liberty in conformity to the preliminary articles, and arrangements were directed to be made for the liberation of those taken on land. The acts of the state legislature and executive were in conformity to those of congress; and therefore all of them may be said to have concurred, that war was substantially at an end, and peace established in January 1783. But leaving this view, and coming nearer to the actual case, we are considering a contract between the legislature and the officers, and therefore the statute, as ^before Observed, should be liberally expounded. In that aspect, the words “end of the war” are not to be confined to a single day; but the object is to be looked to; and that was ascertained when the great purposes of the war were accomplished; for, from that time, ■ the services of the appellees were no longer wanted. Which, indeed, was the sense of the constituted authorities; for they withdrew the officers from command, and bid them retire upon half pay, liable, if wanted, to be called into service again. “End of the war” was an equivocal expression, to be understood according to circumstances, Co. Bitt. 249; and serving until the war was, in fact, ended, was.a substantial compliance with the requisition, and all that a court of equity will insist upon; for, in many cases, that court enforces a compliance with contracts where the courts of law will not. As in the instance of marriage articles, West v. Errissey, 2 Wms. 349; and that of a contract for land, where the purchaser fails to pay at the stipulated day. 1 Atk. 12. In both which cases equity gives effect to the contract beyond the law. The acts of government prevented a literal performance on the part of the officers; and the public should not be permitted to avail themselves of the failure, if it was one, to the prejudice of individuals, who complied with the directions of the organs of state; especially as the appellees cannot be put in the same situation, as before; for they cannot now recall their lost time, labour and sacrifices: which; upon the clearest principles of equity, entitles them, as they substantially fulfilled their own undertaking, to a specific performance on the part of government. 2 Pow. Contr. 16, 22; 1 Fonbl. Eq. 384-5. The doctrine of relation, in the view we are now taking of the case, is stronger than under the political and diplomatic aspect in which we have considered it.. Eor, when the case is regarded as a contract between the officers and the state, the definitive treaty, upon common law principles, will be considered as uniting with the articles, and consolidating itself with them, agreeable to the doctrines of ratihabition ; because, at common *law, ratification constantly relates to the original act. The general principle will be found in 3 Rep. 28; 3 Bulstr. 11; 1 .Rep. 100; 10 Rep. 49; Cro. Jac. 512; and the application of it to particular instances in Jo. 428; 6 Rep. 76; Hob. 222; 8 Rep. 77; Cro. Eliz. 622-3; 2 Bro. Ab. 96, pi. 5; 1 Rep. 94; 7 Rep. 38; 2 Roll. Rep. 469: All shewing that the perfecting act is drawn back to the antecedent, and incorporated with it; especially where the subsequent act had, primarily, depended upon the approbation of the contracting parties; for then confirmation is, upon the principle of ratihabition, equivalent to prior command. The definitive treaty therefore is to be considered as one and the same transaction with the article: and the officers may, not by forced argument, but, upon the justest reasoning, be fairly said to have served to the end of the war. This is supported by the general rules for construing statutes; which shew that such interpretation should always be made as will sustain, and not overthrow the statute, and rights acquired under it. Vaugh. 169, 179; 3 Eeon, 133.
    Warden, in reply.
    There was no performance of the undertaking on the part of the appellees; and the failure was attributable to themselves, and not to government. Por retirement upon half pay was not forced upon them; it was an act of volition on their part altogether: the offer was made, and they accepted it, because it left them to their own private pursuits, exempt from militia duty, under the colour of office, although they were under no obligation to return into service, if called upon, and could not have been subjected to a court martial, if they had refused. The former decision, that the governor’s annunciation in April 1783, should be considered as the end of the war, as to cases of this kind, was clearly right; for, although the proclamation did not make the peace, it was, however, the only legal notice to the claimants that their undertaking was completely performed; and,, if they had quitted the service before, it was premature, and they must abide by the consequences. Until the ^'proclamation., all was known to be mere negotiation: the preliminary articles might have been refused by Great Britain; the treaty broken off altogether; and hostilities renewed. Consequently, the articles cannot, with any propriety, be said to have established peace, and ended the war. Por the conclusion of war is that which makes a peace, from that time forward; not that which may make it thereafter. The doctrine of relation has no application; for that might take place, relative to the effect of stipulations, as between the belligerents themselves, without having any thing to do with the construction of collateral engagements between one of them and its own citizens; and least of all will the common law, which requires precise performance, expound such engagements, by accidental relations arising from a future act, between the hostile parties. It is not strictly true, that the officers could not be wanted after the preliminary articles were signed; for, if the negotiations had broken off, and hostilities had been renewed, they might have been wanted, without any power on the part of government, to force them into service again; for, although by the terms of their retirement, they might, at the call of the executive, have resumed their commands, they were under no obligation to do so, and the state had no means of compelling them. The proclamation of congress, insisted on by the other side, did not affect the case. For although it spoke of a prospect of peace, it did not declare that it existed. On the contrary, the armies were kept on foot, and a new proclamation, announcing that the war was at an end, actually issued after the treaty was ratified. Which proves that none of the parties considered that hostilities were over before. The discharge of the seamen who had been captured, was a matter of little consequence, and the direction to prepare for the liberation of the captive soldiers also, only shewed an intent to comply with the articles, if they should be ratified; for they were not to be liberated, unless the ratification actually took place. The same observation applies to all alterations in the American armies; for, however constituted, they were not to be disbanded *until the treaty was confirmed. Under every view then, it appears that the appellees have failed to make out their title to the half pay; for they did not perform the duty which was required by the statute, as they did not serve to the end of the war.
    Cur. adv. vult.
    The court directed another argument.
    Brooke, attorney general, for the appellants.
    After the laborious discussions which have taken place in the cause, I find it necessary to make but few observations. The court has already decided the period at which the war should be considered as ended; which point is not to be disturbed again, notwithstanding the saving clause of the decree; for that only gave the appel-lees a right to shew, that they had served to the end of the war as fixed by the opinion of the court, and not to subvert the opinion itself; which being a declaration of law, founded upon records against which there could be no averment, was necessarily immutable. But the claimants have produced no new facts; for the papers which they have brought into the cause, present the old case merely. Therefore, the judgment must now be the same that it was before; and, if the appellees are aggrieved, they must apply to the legislature, and not to the court. From the nature of the levy, the engagements of these gentlemen were at the disposal of government, which retained the right of disbanding them at pleasure; for their pay, whether full or half, was to be “during the existence of the legion,’’ only; which implied a power to disband it, whenever government thought proper. Under this view of the case, it is difficult to conceive how any injury has been done to the appellees; for it was not to be endured, that an expensive establishment, which by its constitution was liable to be dissolved at any time, should be kept entire, merely for the sake of preventing loss to a few officers, who had no right to insist upon its continuance. ^However great may have been the merits of these individuals, and I appreciate them as highly as any body, if the nature of their service be compared with that of the regular armies, the comparison is against them. For great part of their time was to be spent at home, and their actual service occasional only: whereas, the others, constantly embodied, were at all times employed in military operations. Accordingly, the stipend was proportioned to the services of each; for it was not to be expected, that men, whose services were less, should receive the same rewards as those whose duties required incessant exposure to the hardships of the camp, the fatigues of the march, and the perils of the war. The officers of the legion were not entitled to the provisions of the act of 1779; for that statute related to the troops then in service, and such as might be afterwards raised upon general establishment, without particular stipulations; but here the services were to be temporary only, and the compensation for them is prescribed in words the most precise: their employment was to be temporary, and their pay daily wages, “only whilst in service.” No fair construction can place such limited services and correspondent remunerations, upon a level with the general services and rewards of the veterans. But supposing them to stand upon the same footing with the troops provided for by the act of 1779, they still are riot entitled; because they did not fulfil the condition by serving to the end of the war; for that was not ascertained by the preliminary articles, bui by the declarations of government at the time; which fixed the termination to the 22d of April, 1783, and not before. That period was adopted by the court in the former case, and nothing has occurred to render a departure from it proper. The change of the tribunal makes no difference; for the rights of the claimants depend upon the acts of assembly; and, if they cannot bring themselves within the provisions of them, they have no equity, as both courts are bound to put the same construction upon statutes; and, if the law denies relief, equity cannot afford it. But the court of *chancery had not jurisdiction; for, if the appellees had right, the courts of law would have redressed them; and the failure of the auditor to plead in abatement, has no influence; for it was not in his power to affect the rights of the commonwealth.
    Randolph, Wickham and Duval — Argued to the same effect as before, arid added, That the retirement from service was the act of government, and forced upon the appellees;. who had not power to resist, but were obliged to submit. That the discharge was not absolute, but in the nature of a furlough, the officers being liable to be called into service again at the will of the executive ; and, if they had disobeyed the call, they might have been punished for it by a court martial; the half pay they received denoting control and service; not active indeed, but liable to become so, according to the original organization of the legion ; which, from its commencement, was subject to partial details; for it was never necessary that all should be called at once into service, but the detail was proportioned to the exigency of the occasion. That the ap-pellees had performed active service as long as they were permitted; and retired, from it, by the order of government, to suit its own purposes, and not theirs. That whatever might have been the terms of enlistment, the legion was, in fact, kept up until the end of the war; and the act of 1790, gave those who belonged to it half pay during life, whether they spent their time in the camp or not, as their services were every moment subject to requisition. That the appellees had properly applied to the court of chancery; which could dispense with forms, where substance had been observed.
    Cur. adv. vult.
    
      
      Supernumerary Officers — Half Pay. — See, citing tbe principal case on tbis subject, Com. v. Lilly, 1 Leigh 549 ; Mayor of Richmond v. Judah, 5 Leigh 319 ; Com. v. Marston. 9 Leigh 43 ; Tatum v. Com., 9 Leigh 58, 61, 77. See Roane v. Innis, Wythe 248.
    
    
      
      Contracts. — See monographic note on “Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364.
    
    
      
      Judgments.— See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   ROANE, Judge.

The question is, Whether the present case differs materially from the former; for, if not, the decision, in that, must govern this. It is said that a difference arises from the greater powers of a court of equity to dispense *with observances which the law requires. But there is no foundation for the distinction: On the contrary, the construction of statutes is peculiarly proper for courts of law; and, when made, those of equity are bound by it; for the latter can no more dispense with the requisitions of a statute, unless from particular circumstances of fraud, force or accident taking a case out of its operation, than courts of common law' can: Both being equally bound by the legislative will, acting within its prescribed limits. There is consequently no foundation for relief, upon the ground of the change of the tribunal. In other respects, the case appears to be the same now, that it was before; and, consequently, as the judgment, at that time, has fixed the fate of the cause irrevocably, it may seem unnecessary to examine the merits of that decision. But I cannot refrain from expressing my entire approbation of the principles then established, however severely they may operate upon the appellees. To put men whose duties were occasional only, and who were often not employed, for the public, at all, upon the same-footing with-the veteran, whose service’ was constant, and who was continually exposed to the hardships and dangers of war, would have violated every principle of propriety; and therefore could never have been intended. Accordingly a 'plain distinction is made through all the laws upon the subject, between the troops who served uninterruptedly during the whole time of the war, and those which were raised for occasional service only. For the first, express remuneration during life is made: for the latter, no such provision is declared, and they claim it by equitable construction only. But what equity have they to the same rewards, when, by the terms of their organization they were subject to less duty, and, in point of fact, performed less service? Therefore, notwithstanding the verbal criticisms which have been attempted on the statutes, I think the sound interpretation is with the former decision. If it be said, that, the events of the war having called them intp almost continual service, they are entitled to the same remuneration with *the others, the answer is, that that begs the question, and supposes, contrary to all just interpretation, that subsequent events can add a term to the law, so as to make it comprehend cases not provided for at the enactment. But, even under that point of view, the fact would not be with them; for the constituted authorities, who conducted the war, were alone competent to say, when it was ended; and they having fixed its termination to the 22d of April, 1783, no averment lies against it, according to the opinion of the court upon the former occasion. But the appellees thought proper to retire, before that period, upon the terms of their original organization, and followed their own pursuits, at home, while their companions did duty in the camp. They therefore cannot justly claim to be put upon the same footing with them in point of compensation. It is said, however, that they had, in reality, served through the war, as they considered, when they left the army, that peace had been established by the preliminary articles; and that, as no hostilities were committed afterwards, the ulterior services of their companions in time of peace, and for which they received an adequate reward, did not give them a preferable right, as the claims of the appellees were perfected by the ceasing of hostilities, although peace was not formally announced. But that mode of reasoning will not help the case. For it cannot be permitted to military men to say, when the war is over; that can only be decided by the constituted authorities, who are acquainted with the whole ground, and may often find it necessary to keep up the forces, in order to compel a ratification of the articles. If, indeed, the appellees had been driven from their posts, and not permitted to do duty any longer, something more might be said for them (although the argument of the attorney general, that government ought not to have kept an expensive establishment entire, merely for the sake of benefiting a few officers, is very strong). But there was no compulsion. It was an act of volition in themselves. For instead of insisting, that as the legion was in service thej7 had a right to occupy their stations *in it, and that their commands ought not to be taken from them, they, upon the first rumour of peace, accepted the offer of retirement, and voluntarily went home. Under such circumstances, they cannot justly claim to be put upon the same footing with those who remained on duty, and whose time was constantly devoted to the public service, during the whole period of the war. However, as they probably went through a good deal of service, I regret that they did not apply to the legislature instead of resorting to the courts. But as they have chosen the latter alternative, I can only say, that the case is the same now that it was before, and that the former judgment concludes the cause. My opinion therefore is, that the decree should be reversed, and the bill dismissed.

CARRINGTON, Judge, concurred.

LYONS, Judge.

As there does not seem to be any material difference between this and the former case, it would be sufficient to say so; and that the cause was concluded by the judgment then given. But, as the propriety of that decision has been questioned, I think it proper to state the reasons which appear to me to support it.

The appellees allege, that they are entitled upon the ground of contract under the act of 1779.

But there could be no contract without mutual obligations; and there were none in this case. Ror, although government had promised half pay for the service, the officers had not stipulated to perform it; and consequently were under no obligation to do so.

It was said, however, that the offer on one side and acceptance on the other, constituted the contract. But that is a mere petitio principii, which changes the words, and not the argument. Ror there was no acceptance in fact: nor could there be any, as the officers had not bound themselves to serve during the war, and were at liberty to resign whenever they pleased.

*There was, consequently, no contract ; but the provision was a bounty only, which the government gratuitously offered to pay for the service when performed, and not before.

It was next urged, that the act of 1790, provides for the case.

But, to say nothing of the improbability that the legislature meant to put those who had performed partial service only, upon a footing with those who had done full duty, there does not appear to be any difference in the requisitions of the two statutes, as the same classes precisely, are provided for, that is to say, such as continued in actual service to the end of the war, and such supernumeraries as were called back to their commands, and served through the remainder of it.

Of course the same objection lies to the claim under both statutes. Ror the appel-lees were not in actual service during the whole war; nor were they ever called into service again, after they had left the army.

But then it was said, that the claimants are within the equity of the statutes, if not within the expression; because they served to the end of actual hostilities, which was the true termination of the war, as the declaration of peace was but a ceremony, which the court may dispense with.

To this, two objections occur at the threshold :

1. That it would be contrary to the policy of the statutes; for as the prime motive of the half pay for life was to induce officers to continue in service during the war, the object would have been frustrated, if a partial service only, would have secured the reward.

2. That substantial performance never entitles to a gratuity, as the condition requires complete fulfilment, and the claimant has no equity; for cujus est dare, ejus est disponere. Thus, if a creditor agrees to accept of £100 in discharge of his debt, provided the monéy is paid on or before a particular day, and the debtor, before the day, pays £99, but omits to discharge the remaining twenty shillings within the prescribed time, he cannot be relieved on the ground of substantial *performance, under pretence that the interest upon the £99 had been equal to the twenty shillings. Ror the condition made payment of the whole £100 indispensable. Sewell v. Musson, 1 Vern. 210.

Therefore, as the statutes required full service as the condition of the recompense, it is not sufficient for the appellees to say, that they performed duty part of the time; and that their services were not wanted afterwards.

But there was not even a substantial performance. Ror how can a man be said to have served to the end of the war, when the constituted authorities regarded it as still subsisting; when military preparations were still going on; and when the armies were still kept upon establishment, to guard against the operations of the enemy?

It is in vain to urge the preliminary articles; for they were subject to revision, and might never have been ratified. The most that can be said for such a state of things is, that it was a suspension of hostilities ; not that it was the end of the war. Ror if the negotiations had broken off, and hostilities had been again carried on to the 22d of April, could it have been said, that men who had retired from the service during the false appearance of peace, and had never done dutj' afterwards, had actually served to the end of the war? Nobody will affirm it; because the resumed hostilities would have been part of the old, and not a new, war.

This shews the propriety of judge Roane’s remark, that the date of peace should be left to the declaration of the constituted authorities, as they are acquainted with the whole ground, and may often find it necessary to keep the armies on foot, in order to compel a ratification of the articles.

Besides, there must be some standard. Ror, if every officer may judge when there is peace and retire from the service, every soldier may do the same; and thus, while the country is deluding itself with a fancied peace, the enemy may be looking on, ready to take advantage of the error, and strike some important blow, before resistance can be reorganized. Public safety therefore requires, that those to *whom the conduct of the war is entrusted, should be the organs to proclaim the peace.

Accordingly the best writers, upon subjects of this kind, refer the period of peace to the declaration of government; and decide that infractions of it, by individuals before it is proclaimed, cannot be punished. Vattel, lib. 4, cap. 3, § 24.

But it is said, that according to that mode of reasoning, all the officers would be excluded; because the discharge was in April, and the definitive treaty was not signed until September. That however does not meet my idea. For I have said, that the constituted authorities are the arbiters of peace and war; and, as they know best when the danger is over, their judgment is necessarily decisive.

Consequently, when congress gave information to the state executive that the war was at an end, and the latter proclaimed it and disbanded the troops, their sentence was final, and no averment lay against it; for government could not deti3r what it had declared upon record.

I regret that these gentlemen are thus situated; and wish it were in my power to relieve them. But I am bound to pronounce the law, and not to indulge my own wishes.

The decree is unanimously reversed, and the following is to be the entry

“The court is of opinion, that the bounty of half pay given by the act of assembly passed in the May session of the year 1779, to the officers of the state line in the said act described, was an extra reward or gratuity for their services from thenceforward, and until the end of the war, if they should serve so long, or becoming supernumerary should again enter the said service being required so to do, and continue therein until the war ended, and that therefore only such of the said officers as were in service in the same or in any higher rank at the end of the war when the army was disbanded, at which time the said half pay was to commence, are entitled to the said bounty, according to the true intent and meaning of the said act: And it appearing by the bill in this cause, that the said Christopher Roane ^'deceased, and the other officers, in the said bill named, now appellees, were supernumerary and discharged as such before the provisional articles of peace, signed between America and Great Britain at Paris, were duly notified to the executive of this state, or solemnly published in America according to the law and usage of nations in such cases, and the army was disbanded in pursuance thereof, and that they did not again enter into the said service in the same or any higher rank, and continue therein until the end of the war, the court is of opinion that they are not entitled to the said bounty of half pay for life, and that the said decree of the high court of chancery is erroneous, therefore it is decreed and ordered, that the same be reversed and annulled; that the bill be dismissed; and that' the appellees pay to the appellants their costs expended, as well in the prosecution of their appeal aforesaid here, as about their defence in the said high court of chancery.”  