
    *Commonwealth v. Banks. Commonwealth v. North & Co.
    [April, 1798.]
    Impressments — Satisfaction for — Application to ■ County Court. — Where property was impressed for public service during- the revolutionary war, application to the county court to adjust the claim ought to have been made, in order to entitle the owner to satisfaction.
    Same — Same—Same—Omission to Apply — Excuse.— But, if he was diverted from applying there, by promises of payment from the executive, or the auditor, that would excuse the omission.
    Same — Construction of Act of 1781. — The act of November 1781, relative to the adjustment of claims for property impressed, and the subsequent con- ' tinuing laws, were acts of limitation; and barred claims not asserted before the 1st September, 1787.
    Same — Same.—Nor was it necessary to plead the bar.
    Same — Appeals from Auditor. — Appeals from the auditor are not confined to pleadings, as in ordinary cases ; and therefore, for the sake of justice, new evidence was received, in the court of appeals, to shew that the acts required by the opinion of the court, had been performed by the petitioner.
    Same — Delay on Part of Claimant. — unnecessary delay on the part of the claimant, until after the year 1790, whereby the state was deprived of an opportunity of obtaining reimbursement from the general government, barred the owner both at law, and in equity.
    Banks, as representative of Hunter, Banks & Co., and North & Co. respectively petitioned the district court (the first in 1796, and the second in 1794.) to be allowed to appeal from the refusal of the auditor of public accounts to admit their respective claims against the comtiionwealth for the value of some vessels and cargoes impressed into the service of the state by order of the executive early in the year 1781. The district court granted the appeal, and directed issues to be tried by a jury, “in order to ascertain the appellants’ loss consequent on the impressment of the said vessels by order of the executive. ” The issues were accordingly made up; and the records contain sundry papers read on the trial; which go to prove the impressment, valuation, and loss of the vessels and cargoes; but no application was ever made, to anjr county court, to adjust the amount. There was a verdict and judgment in favour of the petitioner in the case of Banks for ¿£9681. IS. 6. ; and, in the case of North & Co. for ¿■4070. 5. 5. The commonwealth appealed to the court of appeals.
    ^Washington, for the commonwealth. The act of November 1781, was an act of limitations, which barred claims like these, if not asserted before the succeeding session of the legislature; for that was the incipient step to redress, and was to be taken within the prescribed time. This construction is supported by all the subsequent laws upon the subject; which put the point beyond dispute. For the act of May 1782, cap. 46, evidently relates to claims which had been adjusted in the county courts: That of October 1782, cap. 49, limits them to the first of June, 1783: That of May 1783, cap. 3, extends the time to the first of October, in that year: That of October 1783, cap. 22, to the first of June, 1784: That of October 1784, cap. 18, to the first of August, 1785: That of October 1785, cap. 43, to the first of September, 1786c And that of October 1786, cap. 20, to the first of September, 1787; at which period the jurisdiction ceased. The act of November 1781, did not relate to impressments on land only; for the court decided, in the case of the Commonwealth v. Cunningham & Co. ante, 331, that the county courts had jurisdiction in cases of vessels impressed in the bay, and that there was no difference whether the im-pressment was upon land or water. Therefore application to the county court, within the prescribed time, was indispensable in the present cases. The verdicts of the jury either have no operation, as the' court had no authority to direct the issues, or they operated to ascertain the value only, leaving all other points open to a decision upon the merits. Indeed the issues were directed upon the damages only, and not upon the rights; which were not meant to be precluded by the verdicts. It was not necessary to plead the limitation; for it was a summary proceeding, and to be decided without the forms of pleading; but independent of that, as the right was by the terms of its creation temporary, the objection appears upon the face of the acts themselves. Upon the merits, the case is not like that of the Commonwealth v. Cunningham & Co. For the efforts of Cunningham & Co. were continual: They presented *their claim to the county court in 1784; went with it to the auditor immediately; and then to the legislature, w'ho referred them to the judiciary. Negligence therefore was not imputable to them. The case, however, is widely different with regard to the present petitioners; for they have taken no steps, but have slept upon their claims, until the act of con gress has deprived the state of an opportunity of obtaining satisfaction from the general government; and therefore they should bear the loss arising from their own delay.
    Wickham, Randolph and Duval, contra.
    Application to the county court was not necessary; for the act of November 1781, related to impressments on land, within the body of some county; and not to those in bays and rivers. The case of the Commonwealth v. Cunningham is not against this position ; for the certificate of the county court was disregarded in that instance, and relief granted upon the original merits of the claim. The authority of the executive to impress was established by that decision, and the resolution of the assembly, referred to in it. Therefore the act of November 1781, was not necessary to give validity to the claims of the petitioners in the present case; for the rights existed before the making of that law, and might 'have been asserted if it’had never passed; not only upon the general principles of justice, but upon the express provision of the act of 1778, establishing the auditor’s office; which gives authority to the board, ‘ ‘to examine all demands for the hire of horses, waggons, or other things, employed or impressed by authority of law for the public service, or for the worth thereof, or injury done thereto, where the thing impressed has been consumed, lost, destroyed, or damaged, in such service.” Chanc. Rev. 84, 'i 2. This act recognizes the right to satisfaction of all such claims from the state, and authorizes the auditor to ascertain them. Consequently, as neither the act of November 1781, nor any of the continuing laws upon the subject, opposed a positive bar to the demand, *but only gave a mode of facilitating proof of the claim, they operated cumulatively to the recovery, and not by way of extinguishing the right. Therefore the expiration of those laws left the claim unimpaired, and the parties at liberty to pursue it by the ordinary mode. The length of time is no bar under the general act of limitations, which does not embrace the case in terms, and the court will not be forward to apply it against just demands. But be that as it may, the point is not now open to discussion, as the verdict shuts up enquiry; and the public, by neglecting to plead the bar, waived it. There is no probability that the state will sustain an}' loss by the delay, as it is not likely that congress, will consider cases thus situated, and solemnly decided in adversary -suits, as coming within the limitation prescribed by the act of 1790, respecting claims against the United States.
    Cur. adv. vult.
    
      
      Impressments — Neglect in Having Property Valued. —See the principal case cited in Com. v. Beaumarchais, 3 Call 175.
    
   PENDLETON, President,

delivered the resolution of the judges, as follows:

The court are, at present, of opinion, that although the demands might have been originally well founded against the commonwealth, yet if the claimants neglected to exhibit their claims to a county court, under the act of 1781, or the subsequent acts continuing that mode until September 1787, their claims were barred by that act, unless they can shew that they made such application to a court, or were diverted from doing so, by some proceeding between them and the executive, or the auditor.

In Cunningham’s case, there was an application, and such valuation recently made, but adjudged by this court not to be binding to fix the value, because at the time, the law, meant to be pursued, was expired; and against this mistake the court relieved him, since he meant to use the legal diligence in due time. We think, at present, that case went far enough, and ought not to be extended to let in all stale claims for impressments, in which no step was taken to establish *them, if existing, by adjustment of a county court, during the period from 1781 to September 1787.

In the present cases, no application is proved, or even stated, nor any excuse assigned for its omission, and the legal objection applies, without any equity to encounter it.

But as the claimants may be able to shew a court’s valuation of their claims, such as Cunningham’s, or a reasonable excuse for not shewing it, and may have forborne to exhibit them, from a mistaken impression of the principles of decision in Cunningham’s case, the court are willing for the sake of justice in these cases, not confined to pleadings as in ordinary cases, to afford them an opportunity of producing them.

As delays may be injurious to the claimants or the commonwealth, upon whomsoever of them the loss shall fall, in an application to the United States, the real debtors, if the papers are now ready, the court are willing to receive and judge of them; otherwise the cause must be continued to have the defect supplied.

I said for the sake of justice, the court not allowing the similitude to be just, between the introduction of such papers here, and that of recurring to subsequent laws.

The petitioners not having any additional evidence ready, the causes were continued; and, at the next term, they filed affidavits upon the subject.

Banks proved by a witness; that Hunter, Banks & Co., about the year 1783 or 1784, applied to the auditor for payment, but was refused: and that about the same time he applied to the executive, who thought there was no redress: and upon his requesting them in 1787 to lay the claim before the assembly, they refused.

North & Co. proved by several witnesses, that they had, in the year 1784, and at sundry times afterwards, applied to the auditor for payment, but could not obtain it.

The foregoing testimony was now insisted on by the counsel for the petitioners, as establishing their right to payment under the opinion of the court at the last term.

*PENDUETON, President,

delivered the resolution of the judges. That the additional evidence did not supply the defects contemplated by the former opinion of the court. That the meaning of the court was, that the claimants should shew that they were diverted from an earlier and proper pursuit, by hopes of payment given them by the executive or the auditor. But so far from that being shewn, the additional evidence proved that both of them had refused it: which left the petitioners at liberty to have pursued the legal' steps, if they had thought proper; and that the failure to do so proceeded from themselves. That, therefore, the judgments were to be reversed; and that the following was to be the entry:

“This day came as well the attorney general for the commonwealth, as the ap-pellees by their counsel, and the court having maturely considered the transcripts of the records of the judgments aforesaid, the affidavits produced by the appellees pursuant to a former direction of the court, and read by consent of the attorney general, and the arguments of counsel, is of opinion, that the expedition stated in the proceedings to have been meditated against the British army in the town of Portsmouth, being planned by, and to be executed under the command of baron de Steuben, an officer of the continental army, who required the aid of the government of this state, in procuring the auxiliary assistance of the vessels lost; the claim» of the appellees were justly due from the United States, especially as the faith of the Union was pledged by their officer, to make compensation : Nevertheless, since the faith of this state was also pledged by government, for their recompence, they had originally a claim against the state, which, if paid would have been a proper article of debit to the United States, in the accounts between them and this state. That the valuations of ‘ these vessels and cargoes, being made and returned to the state executive, the subject is presumed to have been laid before the general assembly, (the power who alone could provide funds for, and authorize payment,) in their November session *1781, when an act passed intituled, ‘an act for adjusting claims for property impressed or taken for public service,’ wherein reciting that, on examination of several returns of valuations of property impressed, the prices appear to be unreasonable, the several county courts are authorized to value horses, provisions and all other necessaries impressed or taken for public service, independent of former valuations, and to certify their proceedings to the succeeding assembly, that justice might be done to individuals. By an act passed in May 1782, the auditor was directed to regulate the county court certificates by a scale of prices fixed in the law for certain articles, and issue warrants accordingly, as to all other articles he was to issue warrants according to the certificates, unless he judged that there was reason to reduce the prices, which he was empowered to do. By an act passed in October 1782, reciting that there might be several claims for property impressed or taken, which had not been adjusted and allowed by the county courts, the courts are required to receive and adjust all such as should be presented before June the first, then next, and certify and return the same and the vouchers, to the next assembly. By an act passed in May 1783, the courts were empowered to receive claims till the 1st of October following, which were to be certified to two commissioners appointed in aid of the auditor, who were to issue the warrants instead of him; but, by a subsequent act in October, the commissioners were discontinued, and the returns were to be made to the auditor. By that act of October 1783, and by several subsequent acts of October- 1784, October 1785 and. October 1786, the power of the courts to receive these claims and certify the valuations, was kept open until September the first, 1787, (except some small intervening chasms, from mistake in wording the laws, unimportant in the present dispute,) and then the power was finally closed, and by an act of the general congress, passed August the tenth, 1790, no claim was to be admitted in the account of any state against the United States, as paid to a citizen, unless *the same was allowed by such state, before the twenty-fourth of September, 1788. Since, therefore, during the period from October 1781 to September 1787, these claimants do not appear to have applied to any court for a valuation of their property, to entitle themselves to an allowance by the auditor, who had no power to issue his warrant, but on a certificate of such valuation, his refusal of the warrant upon the present application, would have been justifiable on that ground only; and since, by allowing the claims at this late period, a loss might be thrown upon the state, through the negligence of the claimants, the court is of opinion, that the claims against the state are barred both in law and equity. In the case relied on, of Cunningham & Co., they applied to a court in time, and obtained a valuation, with which they regularly applied to the auditor, who refused a warrant, being of opinion that the impressment was not of the sort contemplated by the act of 1781. After the time had elapsed, an application was made to the legislature, who referred them to the judiciary. Upon the auditor’s refusal, an appeal was made to the district court, and from thence to this court, where it was decided, that the case was embraced by the act of 1781, in which the auditor was mistaken, and ought to have issued a warrant upon the valuation: He would have been decreed to do so by this court, but it happened that it was made in one of those chasms of time when none of the laws were in force, and therefore, not legally binding, to entitle him to the claim, or fix the value. But it being apparent that the legislature, as well as others, believed the laws to be in force at the time, and the claimant, on that supposition, had made a recent pursuit, the court relieved him against the mistake, and the value was to be settled by a jury. In the present case, the supplemental depositions admitted by consent, do not prove the claim to have been presented to any court for valuation. They tend to shew, that the claimants en-quired of the auditor, if the original ap-praisement was in his office? He answers, it is not: They proceed to ask his advice, which, if he gave at*all, was not official, but the same as if given by any other individual, and no excuse for their not pursuing the law. The cases, therefore, are wholly dissimilar as to the ground of relief. Upon the whole, the court adjudge that there is error in the judgments aforesaid: Therefore it is considered, that the same be reversed and annulled, and that the appellees respectively pay the costs of the prosecution of the appeals aforesaid here; and this court proceeding to give such judgment as the said district court ought to have given, It is further considered that the several appeals of the appellees from the decisions of the auditor of public accounts rejecting the claims of the appellees be dismissed.”  