Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1830-04-09
FOR THE ENQUIRER
VIRGINIA COURT OF APPEALS.
The CoMMoNwEALrH We. LILLY.
JUDGE COAITER,S OpINION


wen AZ 70 the Individual who ia the Appellee in the
,hshuo" as u involves the interesting and much ag'-
ta'ed question: whether Supernumerary Officer Of
the Revolutionary Army, in the State Line who was
never called INTO service after he became Supernume
rary, entitled to half pay under the act of I779.
Lilv, the in'es'ate o. the Appellee, Captain in
the NAVY commissioned. before the adoption Of the
Constitution in January l776 and also by the Govern
or afterwards, in August, I776
lie departed this lite in I79S, and administration
gran'ed TO John Chowning (who intermarried with his
daugher) in Feb. 1896 who soon there after Exhibited
his claim TO the Auditor.
The Attorney for the Common wea l,h has pleaded
The statute OF Limitations, bar To the claim; and
has also relied the apse of time as evidence of paw
ment or abandonment of claim.
As to The former-as the claim rests upon the laws
o the 'and, and the commission under the Sea Of the
Commonwealth without examining the other objections
taken to The plea-I think can't be pleaded
solute bar 10 the claim
AZ 10 the presumption Of payment think the daia
whch VIII he given hereafter of the res stem Of the
State for long time. to all claims for half-pav even
case OF service during the ,cdr, will furnish conclu
sive proof that he could not have been paid and as
10 Abandonment oil his claim, he may have done So in
despair NJ obtaining IT,; hut there is no evidence that
he ever doubted Of its justice.
In May, lIst he joined with the other Officers of
the Army and Navy, in strong Iremoral and remon-
STRANGE to the Legislature. against the Resolution Of
December preceding, which inhibited the Auditors from
ISSUING warrants Tor according to the list-
t'hed 10 them by the Executive; az their guide in issu
ing such warrants; but without success
! He witnessed the struggle carried on nv nany Of
Ohcers before the Courts of Justice in the wear
1871. 1872, and 1I93-as will hereafter he in some
measur detailed-anJ soon after sunk into HE grave
unre warded if he entitled to IT, for those mero-
rious services, which the witnesses concur in saving he
rendered during the war.
| strongly inclined 10 think that Gan, IiI,y serv
ed from 11I6 until after the 3lst Of March I7s3 ON
which day, the Cover having laid before the Coun.
cil' Information from our own Delegates in Congress-
tha' news Of general peace had been received and
that Congress had recalled her armed Naval Commits
SONS he Is advised TO DISCONTINUE the for
BAY defence, and dismiss the Navy.-I shall not how
ever. go into the examination OF those circumstances
which satisfy Of the great probability of this fact
Nor will demonstrate as think can tina, he ssrr-
ed at least until the Navy nearly demolished be-
ing reduced TO single vessel the Lookout Boat Ibpr-
| ~, by The act of November Session l7sI-AnJ all
though, after that it what encre,s-d TO- BAY
defence, and so continued until April, 1888; yet
now going on the admission that Iy did not serve al
ter The great reduction above spoken Of
After the re inction OF York the enemy were shut
UP in their strong holds in New York and Chares'on;
so that, with the exception OF contemplate Naval
force which occasionally infested our waters we had
nothing 10 fear. until Great Britain should fit ont new
arm ament against us This was not pxpected mas
r1uc Sir Guy Carlton very soon after that event
notified Ne, that Commissioner had gone Paris an
horiz"d 10 negotiate general peace on the basis of
American Independence
Until his should take place. however it was impor-
ant TO keep on loot the Continental troop AMI, indeed
10 NIL up the quotas OF the States in that Line at the
sam" time that prudence required diminnon OF our
corps Tor state defence, in order TO economic our
sary; the probability OF which, however, was daily
diminishing
In pursuance of this policy the Legislature al the
November Session. 1871, 90. H. s. 49, directed re
d"ction OF the Officers of the State Line and con-
soldaiion OF the troops into corp, Sc which be
ing effected, many officers rendered Supernume.
rary, and this course ordered to he pursued from
time 10 time, the time OF service of the troops xpr
ed. which were not to be rep. ale by new leves; but
on the contrary laws Were passed authorizing enlist
mcGts TO he male fom the State Line into the CONT.
InentaI. and, of the had
enlisted, were ordered TO be discharged that on the
last arrangement OF the troops by Col Dabnay in Feb
1883; very lew officers remained in his Legion who
could serve, literally, TO the nd of the war
rs 10 the Navy The act above referred to- reciting
that i, was necessary to husband the OF the
STATE. with the utmost economy AMI since our inan-
ces did not admit OF putting the Navy FOOT q,
productive OF any public benefit adequate TO it's ex.
penditure, directs the officers OF every denomination
h" reduced, except 80 many might he necessary Tor
tn" command of the Lookout Boat Liberty
This Act had been preceded by one of Nav 1880
90 III. $. 29Dwhich reccs that whereas il is ncces-
sary that no officers should be retained in the Marine
Department. but such properly qualified and to
effect which reform, the Governor is directed TO consti-
ue Board TO consist of the Commissioners of the Ma
wy and six OF the Captains the most approved for their
ability, who, having been first fred IN her command
should perform that duty. The Executive vas TO Sc
lect these, and fr them in their command, that they
might with lmpartaIity proceed 10 the delicate duties
of their appointment
This Board was constituted and made their report:
and have doubt but that Capt Lilly, who was not
only of the Oldest but all the testimony cstab-
fishes, amongst the most mcrorous of the corps was
! a member of this board
The Legislature furthermore, during the same scs.
sion OF ISL and after the reducing the army and
navy aforesaid passed the Act 40 H. S. 1927 for adj
ustng the pay and accounts of the officers and soldiers
of the Virginia line Continental establishment and
also OF the officers soldiers sailors and marines in the
service of this State; in which, amongst other things
ii is, provded-rhat whereas, by the reduction OF the
attaous, and corps in the State service considerable
number of officers have become supcrnumerary be IL
cnactedThat return OF all the State officers shall be
made and the Executive hereby empowered and re-
quired TO set foot proper enquiries to discriminate
officers, by unworthy conduct, by any what.
ever, be thought unfit TO be considered entitled to
lh0iCPdy.
This discrimination made i'm part early i'm 1882.
That which sed the Navy had already been made,
above stated The Legislature therefore when they
came TO speak oil the Navy in this Act, sayThat the
officers OF the Navy rs Hfy stand arranged by late
regulation, shall be entitled 10 the saIn advantages
the officers belonging TO this State i'm the land service
The Act of l779 it is admitted all hands promises
half-pay TO the officers, well of the Continental as
state line. who continued in service 70 the end of the
war. II Is true the officers of the Navy are not ex-
pressly mentioned in this act but many subsequent
acts, either TO be taken explanatory of This act, or as
substantive provisions, extends the benefit TO the
Navy, as has been decided by us in Markham's case;
so that officers of the Navy are equally entitled, with
officers OF the State line. The supernumerarics contem-
plated by the Act Of 1919, such 0ugidr-
bin thrown out OF service by the necessary reduction
the corps until they could be reinstated bv new leves;
not SUCH became in consequence of great vcto-
~, changing the whole face of affairs and in fdct
putting end TO the war, the capture of York did;
after which new evies were not desirable but the