Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-01-30

pons for ESQ each, cut from bonds OF
the Commonwealth issued under the act
of the General Assembly dated March
80, 1871 (; that the Commonwealth had
refused to pay them, and therefore
prayed judgment against it for
that amount and interest accord
ing to law; and that a summons
issue requiring the said Commonwealth
Of Virginia and Morton Marye, Auditor
Of the Commonwealth Of Virginia, to
appear and answer the said petition,
and show cause, if any they or either
Of them can, why such judgment should
not be entered, as prayed for, &c.
In response to this petition, the said
Circuit Court, on the 22d Of December,
1891, issued "a summons to the Com
monwealth Of Virginia. and to Morton
Marye. Auditor Of the Commonwealth
Of Virginia, to appear on the first Mon
day of February, 1885, and answer
said petition, and show cause. if any
he can. why the prayer thereof should
not be granted, and why judgment
should not be entered in his behalf
against the Commonwealth Of Virginia
for the sum OF s24, 900, with interest.
as deIoanded." On the oath day of
December, 1884, before any appearance
for any of the defendants. the Court. Of
its own motion, ordered that the
order herein entered upon the ODD of
December, 1884, be set aside and
upon consideration Of the petition here
tofore filed, this court being without u-
risdictiOn to entertain any suit against
the commonwealth of Virginia, it is or
dered that the said petition, as to the
Commonwealth of Virginia. be dismiss
ed. And it is further ordered that
Morton Marye. Auditor of the Com
NOR wealth of Virginia. do file his an
swer TO said petition on or before the
first Monday Of February, 1885, and
show cause. if any he can, why the
prayer of the petition should not be
granted"
From this aforementioned order in the
cause by the Circuit Court this appeal
is taken.
The question presented by the record
seems to be more of mere form than of
importance for while the order COM
planned of does amend the first order
by dismisSing the petition as against the
Commonwealth. 90 Homine, as a party,
yet it expressly retains the petition as
against the Auditor (Marye), and sum
mons him to answer and show cause
why the prayer Of the petition shall not
he granted and Judgment against the
Commonwealth entered for the amount
claimed. And this. according to the
ruling Of this Court in Iligginbotham'
executor rs. The Commonwealth, 2jth
Grattan. fixes the amcnablity Of the
State TO the judgment of the Court. On
page G31 of 25th Grattan Judge
Bouldin. for the court, in IIigginbo-
tham's executor rs. The Common
wealth. sHpra. said: MY opinion Is
that under the statutes OF the State she
is liable to be sued in this case by pc
tition against the Auditor, and that
judgment should have been rendered
against her. | do not mean to intimate
that a State can be sued in any case
either by her own citizens or by others,
in her own courts. without her authority
and against her consent. But it has
ever been the cherished policy Of Nir-
ginia t. allow her citizens and others
the laf sest liberty of suit against her
self; and there never has been mo-
ment since October. l77S, (but two
years and three months after she be-
came an independent State) that all per-
sons have not enjoyed this right by eX-
press statute"
The petition fled in this case is under
the forty-fourth chapter of the Code OF
1873, whose sections. from one to SIX
inclusive. set ont the mode Of procedure
to recover claims against the State and
the order Of the Circuit Court OF the
city of Richmond complained Of is
mere matter of pleading or procedure
for it still entertalns the cause as 1t Is
made in the petition; and upon proper
and sufficient proofs judgment can be
rendered against the Commonwealth for
the debt claimed. The State has by
statute allowed herself to be sued in
her own court-tO wit: the Circuit
Court of the city Of Richmond. But
this sub m0do. In every such case the
said Auditor lof Public Accounts) shall
he defendant. lie shall file all answer
stating the objections to the claim. And
the cause shall be heard, without any
unnecessary delay, upon the petition or
bill and answer and the evidence.
Section ,, chapter Al, Code Of 1873. The
order of the Circuit Court in this case
may have been unnecessary as under
the first and unamended order in the
procedure the judgment of the Court
would have been exactly the same, yet
/ il has not affected the right or the rem
cdy of the appellant, and he has no
cause for appeal.
The judgment or order complained oi
I