The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-02-15
ecution against the Common w eal,h is not the

10. NlO4N Ia L MohlNll<U.
ecution against the Common wealth is not tn
legitimate consequence OF a judgment agafrs
the Commonwealth. Courts OF justice har,
two distinct Offices to perform; one, to ascer
tHin and declare legal obligations and liabTj
tics; the other, to enforce oLedieuce to th.
law and coerre the reluctant discharge o
Legal obligations. A very large proportion
Of the citizens OF every enlighleHed eommu
nifty are very willing to discharge any obliga
ton which the law, when authoritasiveIs
pronounced, imposes upon them anrf as te
thcfn this second Office Of the courts'is need
less. 1t is recognized as needless, and ex.
pressly denied sometimes by law. The
United States bankrupt law authorizes rhe
Bankrupt Court to permits the prosecution
Of suits in che State courts simply for the
purpose of ascertainmg and declaring The
legal liability Of the bankrupt.
1t is. quite consistent with our ideas OF
State sovereignty that The State might con-
sent to submit 10 her coarts the adjudication
of her legal obligations; but it is difficult to
accept any construction Of statute consistent
| with fundamentals law which would demean
| the State so far as 10 subject her to the CO.
| ercive process of her own courts. But am
humbly of opinion that the law Of Virginia
| does not authorize any Judgment against the
| Commonwealth for any Oebt due by her.
Upon refereace to the records Of this court,
| so far rs they escaped the catamity Of 1865.
| | find that the practice has not been uniform.
| In some cases the orders have been in the
| form Of n judgment against rhe Common
| wealth, but in Others in the form of an ad.
judication of the right of her debtor and a
| mandate TO the Auditor to draw bis warrant
upon the Treasurer in satisfaction thereof.
This seems to have been the form approved
by the Court of Appeals 10 Lily's case, Il
Leigh, 5II7, and adopted in Marston's case, (9
Leigh, 44,) and was the form in which, from
an examination of my records, find that |
| entered judgment in favor of Cbalkley, which
was reversed upon Other grounds By the
Court Of Appeals, although in the case rs re-
ported it would seem that / had entered
Judgment against the Commonwealth go
Grattan, 1857
The Legislature of Virginia seems to Re
to have contemplated her Auditors, as part
Of her Executive Department. as the proper
and sufficient officers to audit all claims or
demands against the State; and to have con-
ceded the right of appeal 10 the courts not
as an inratum against the Commonwealth,
DuL luOlC III tut Dululc vi all loi IT,
dress from wrong done by the auditing otli.
Ger. In the original act of 177s, % Hennine's
Statutes at Large. pages 53G $40. Establishing
Board of Auditors, it is made their duty.
after specific enumeration Of many other
matters (page 53S(, to examine and enter
into &C .ount all other demands for money on
the Treasurer made under authority OF any
law heretofore passed or hereafter to be
passed, and in that act the right ofappeal 10
the courts is granted. when 1.-THE Auditors
acting according to their discretion and judg-
ment shall diSalow or abate any article of de-
mand against the Commonwealth" and also
to "any other person who is entitled to de.
mand against the Commonwealth any right
in law or equity"
This provision in the interest Of any other
claimant does not ut al! conflict with the idea
that the proceeding was adversary to the Of
ticcr rather tban the State. Il was Il wise
and necessary addition to the law TO provide
for cases in which the Auditor might viii
fully refuse to examine any claim, or might,
in m honest doubt of his authority to do so,
decline such examination and remit the
claimant to hi, right Of appeal to the courts
This act seems to have been substantially un-
changed until 1888.
The original act did not specify the man.
ner in which the petitioDing creditor should
proceed or the parties whom he should bring
before the court. The .ct Of 1893 session
Acts, page 27), however, does and it requires
the Auditor to tilean answer stating bis ''rea-
sons for not allowing the Calm and all ohjec.
lions which in his opinion the Commonwealth
ought to make thereto" and in the event
of 4 judgment, it is made, in the I'd section,
his duty to draw his warrant upon the Trel.
sury to pay it.
If the law contemplated it as bis duty to
make known to the court sufficient reasons
for his refusal "to allow the claim," and his
duty if the claim were allowed by the court,
to draw his warrant upon the Treasury i'll
payment thereof, it is difficult to see how
the nature of the proceeding authorized
in the courts could be regarded as iustitying
the entering OF any judgment against the
Commonwealth for the breach of duty Of her
executive officer.
The act OF 1912 followed, which forbade
any payment OF such claims exceeding $500
in amount without special appropriation.
The law is it then stood IS substantially
the same nov. 1t IS not made necessary by
the law, and believe it is not the ordinary
practice in these matters to make the Com
monwealtb party. The Auditor is treated
and regarded as the representative OF the
Commonwealth, and in her absence author
lied TO speak and act for her. ln this case,
although the judgment is against the Com
monweatb, she is not 4 party 10 the record.
am Of opinion that when the claim Is
over $500 in amount the Judgment OF the
Court should be limited. TO Il recognition OF
the validity of the debt, and to an order upon
the Auditor to draw his warrant upon the
Treasury as soon as the General Assembly
should make the necessary appropriation
(not unlike q judgment against personal
representative de bonis teStaloris Qudndo dc-
ciderinD, and that when the amount is be-
low 5000 the judgment should be mandatory
| to draw his warrant ut once, unless IN his
| answer 10 the petition he should make it
manifest to the Court that he had no funds of
| the Common wealth subject to his control
which, uuder the acts OF appropriation Of the
General Assembly, he could apply to the
| satisfaction Of the petitioners claim: in which
event the judgment should be conditional in
| like manner as if the claim exceeded 5000.
Counsel for the ugginbothams reserved
the right to take the clse up to the Supreme
Court.
UNITED STATES DISTRICT COURT, SATrR-
DAY Judge Hughes presiding-ln The mat
| ter of n. j. Land, bankrupt. The clerk was
directed to check upon the fund in bank for
| $500 in favor Of the assignee, ana the as
sienee was ordered to pay the claims for Ia
| Dor according to the dividend declared by
| the Register.
Armis;ead & Morton. assignees, cS. Harris