Volume 1 — Court of Claims Reports

<p> On Demurrer. </p>

<p> The warden of the United States penitentiary uses six broom machines, protected by letter's patent, without authority from the patentee. The claimant waives the tort and sues for the profits realized by the government from the use of his machines, under an implied contract. The defendants demur to the jurisdiction. </p> <p>The use of a patented machine by the government does not constitute a talcing of private property for public rise within the meaning of the Constitution.</p> <p>Every subordinate of the United States cannot decide for himself when the exigency has occurred, or the necessity exists for the appropriation of private property.</p> <p>The unauthorized use of a patented machine is the infringement of the patent right, and. not a caption of property.</p> <p>The jurisdiction of this court does not extend to actions for the infringement of a patent.</p> <p>“It is the machine itself, and not its product, that is protected by letters patent.” Therefore, an action cannot be sustained which seeks to recover damages for tbe profits derived from the product of the machine, instead of for the unauthorized use of the invention.</p>

<p>The army of the Potomac did damage to the farm of one Weston, who assigns his claim therefor to the claimant as security towards the purchase money of the same farm. The claimant sets this up and seeks to recover upon it, with other causes of action.</p> <p>An assignee of a claim cannot prosecute sucli claim in tlie Court of Claims.</p> <p>Such an assignment is void by the act of Congress of February 26, 1853. — (Chap. 81, §J, 10 Stat. at Large, page 170.)</p>

<p>The superintendent of the Gumb&'land road orders a contractor to build the road in a manner differing from that specified in the contract, which he does. The contractor also keeps the road in repair afte)’ its completion, and before its acceptance by the government, without being required to do so.</p> <p>Por extra service a contractor may recover extra compensation when the same was ordered on the part of the defendants. He cannot recover for voluntarily keeping a government road repaired after the completion of his contract to build it, and before its acceptance by the government, without authority from the government or it agents.</p>

<p>The claimants import iron and steel into the United States, on which a collector of customs assesses an illegal amount of duties. The claimants pay the duties without giving the written protest required by the act o/1845, and the collector pays them into the treasury. The claimants bring this action to recover back the excess of duties as money had and received to their use. The defendants demur to the jurisdiction and upon the merits.</p> <p>This court has jurisdiction of a claim under the revenue laws which is based upon an implied promise to repay money erroneously exacted, although Congress may have provided another remedy by action against the collector.</p> <p>But the action given by the act of February 26, 1845, against a collector is virtually an action against the "United States. The protest is required to warn the officers of the government that the payment of the duties will be contested. Where no such protest is made, the duties are not illegally exacted in the legal sense of the term.</p> <p>The distinction sometimes taken between ignorance and mistake of law is a refinement which cannot be supported.</p>

<p> On Demurrer. </p>

<p> On the Proofs. </p>

<p>The officer of the United States commanding troops in the vicinity of Tucson, Arizona, orders Ms subordinate to destroy such government stores as he cannot transport, together with suchprivate property of the claimant as may be of value to the public enemy or to the disloyal people of Tucson. The subordinate officer, acting under circumstances of immediate and pi'essing necessity, notifies the claimant to save his papers, and in half an hour fires Ms mills and other property.</p> <p>Tlie taking of private property for use or for destruction, when the public exigency demands it, by a military officer commanding any part of the public forces, is an exercise of the right of eminent domain. •'</p> <p>■Whenever the officer is justified, the government is liable. The state of the facts as they appeared to the officer when he acted must govern the decision.</p> <p>There is no discrimination to be made between property taken to be used and property taken to be destroyed.</p> <p>It is no defence that the circumstances must have rendered the property valueless to the owner if the officer had not destroyed it. It is the imminence of danger that gives the State a right to destroy property; but the certainty of the danger does not relieve the State from liability for the property which it takes to destroy.</p>

<p>The claimants contract to furnish timber to the government at certain stipulated times, and to forfeit ten pe?' ce?it. for breach or failure." They are in default, but the government permits them to proceed, and receives the matei'ial often' the stipulated time has expired. Subsequently the govwnment annuls the contract and declares the ten per cent, forfeited.</p> <p>Forfeitures are not favored in. law.</p> <p>Any act which recognizes the continuance of the former relations existing between the parties subsequent to the breach and with knowledge of it, is considered a waiver of the forfeiture.</p> <p>A contract may be annulled by a party though he waive the forfeiture.</p>

<p> On the Proofs. </p>

<p> On Demurrer. </p>

<p> On Demurrer. </p>

<p> On the Proofs. </p>

<p> On motion to Dismiss. </p>

<p> On the Proofs. </p>

<p>These cases are identical in principle with that of Schlesingeh, p. 16, ante.</p>

<p> 'Congress refer a claim to the Secretary of War for settlement upon condition that the claimant shall surrender certain property to the United States. lie does so, and also conveys a brich-yard not included in the submission. The government accepts all the property, and the Secretary makes an award which includes the value of the brick-yard. </p> <p>An award by the Secretary of "War under a submission by act of Congress, which includes in its estimate property not embraced by the terms of 1he submission, is void even though the government accepted the property before the award was made.</p> <p>■Prospective profits cannot be allowed as damages where the contract is cancelled by consent of parties.</p>

<p>The claimant agrees with the Secretary of the Treasury to erect a building and lease it to the government at annual rent specified. The government refuses to cai'ryout the agreement, and notifies the claimant before the completion of the building that it will not be accepted.</p> <p>The gain or profit of which, the contractor was deprived by the refusal on the part of the United States to allow him to proceed with and perform his contract is the proper measure of damages in such case. (13 Howard, 344.)</p>

<p> On Demurrer. </p>

<p> On the Proofs. </p> <p>fn 1839 and 1841, the claimant, as consul and commercial agent at Honolulu, received, distributed, and disbursedthe cargoes of the storeship Relief and the bark Flora, for the benefit of the expedition under Captain Wilkes. Having the means of ascertaining the amount and value of the cargo of the Flora, his account was made out at the time and paid by the Secretary of the Navy, it being two and a half per cent, commission upon the value of the cargo, and twenty per cent, upon the sum, itamountedto at the rate of exchangebetwcen the Sandwich Islands and the United States. Oioingto the absence of any invoice of the value of the cargo of the Relief, his account for its disbursement was not presented until some years subsequent, when he ascertained the value of the cargo of the Relief. The Secretary of the Navy refused to allow compensation on the ground that the claim was a stale one. The claimant seeks compensation for disbursing, and the exchange between the Sandwich Islands and the United States.</p> <p>A claim may be valid though disallowed by the Secretary of tho Navy as stale.</p> <p>When the damages awarded by the court are to he paid here, exchange on Honolulu cannot be allowed.</p>

<p>The United States frigate Constitution captures the British ship “ Levant." Before condemnation the prize is recaptured in a neutral port. The United States do not press the claim against Portugal, and the claimant seeks to recover his share of the prize money lost thereby.</p> <p>A captor has no such interest in a vessel recaptured before condemnation as would compel the government to press a claim against, a neutral government in one of whoso ports the prize had been illegally recaptured.</p>

<p> A clerk in the Department of the Interior is appointed agent of the United States to attend the Industrial Exhibition in London, and is promised, by the terms of his appointment, compensation for this extra service and the reimbursement of his expenses. He continues at the same time to hold his clerkship and to draw his pay in the department. </p> <p>Under the act 23d August, 1842, (5 Stai L., 525, § 12,) one whose salary is fixed by law can hold no other office, and can receive no other or additional compensation for any service whatsoever.</p> <p>And see "Wilson’s case, post.</p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p>The claimant brings his action for damages done by the army of the United States during the war of the rebellion. The action is commenced before the passage of the act of July 4,1864, restricting the jurisdiction of the Court of Claims. The question now is whether that act concludes the court from retaining jurisdiction of an action commenced before the act was gassed.</p> <p>The act of Congress of tlie4th of July, 1864, (13Stat. L., page 381) provides “That the jurisdiction of the Court of Claims shall not extend to or include any claim against the United States growing out of the destruction or appropriation of, or damage to, property by tbe army or navy of tbe United States engaged in the suppression of the rebellion from the commencement to the close thereof.”</p> <p>This language covers all cases from the commencement to the close of the rebellion. Therefore-the jurisdiction of the court over this class of cases ceased at the time the act of July 4, 1864, went into operation.</p> <p>This application of the statute does not give to it a retroactive effect. It merely suspends and renders of no avail proceedings now incomplete and inefficient without further action here.</p> <p>Nor does the statute impair the obligation of contracts, as it is not a State statute, aud therefore is not within the Constitution of the United Slates restricting State legislation; and because it acts only upon the jurisdiction of this court, which does not involve the obligation of a contract or any vested right.</p> <p>The case of Virginia Scott is ruled by the same principles.</p>

<p> On the Proofs. </p>

<p> On motion to Dismiss. </p>

<p> On Demurrer. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> On motion to Dismiss. </p>

<p> The claimant acts at various times for the United States in the absence of their minister as charge at Guatemala. He receives no specific appointment fromthegovernment, but he expends money for destitute American seamen, and his correspondence is acknowledged and his services are approved by several Secretaries of State. Secretary Marcy certifies that he should be remunerated. </p> <p>A party acting and treated by the United States as tbeir charge in a foreign country during the absence of tbeir minister may recover the value of his services, &c., although he received no specific appointment from the government.</p> <p>The official letters of public officers have always been received as legal testimony in this court.</p> <p>The opinion of the Secretary of State as to the value of an acting charges services is to be received as that of an expert.</p>

<p> The petitioners were assigned by the circuit court of the. United States for Missouri as counsel to defend an Indian indicted for murder. They performed their duty and bring this suit to recover of the government their fees. </p> <p>The government is not liable fortlie fees of counsel assigned by a United States court to defend a criminal.</p>

<p>During the war of 1812, Congress pass an act to encourage the destruction of the armed vessels-of-war of the enemy</p> <p> A sloop manned by British seamen, and commanded by a British officer, comes into inland waters, lands a party and takes possession of a town. A lieutenant in the army of the United States surprises the enemy and captures his vessel. </p> <p>Under the act of 3d March, 1813, (2 Stat. L., p. 816,) a lieutenant in the army is entitled to the bounty given for destroying an u armed vessel.”</p> <p>A sloop commanded by au officer of the enemy, and on a hostile mission, is an “ armed vessel” within the meaning of the “ act to encourage the destruction of the armed vessels-of-war of the enemy,” approved March 3,1813.</p> <p>The statute oflimitations (12 Stat. L., p. 763, § 9,) does not apply to cases then pending in the court.</p>

<p>Congress, on the 29th day of July, 1818, passed an act giving a pension to the widows of officers and soldiers of the revolutionary army who were married prior to 1800, the pension to commence on the 4th of March, 1848. On the Zd of Febmanj, 1853, Congi'ess passed another act, providing ‘ ‘ that the widows of all office's and soldiers of the revolutionary army who were mairied subsequent to January, 1800, shall be entitled to pensions in the same manner as those mairied before that date</p> <p>The claimant, a widow, and toho was married subsequent to 1800, received a pension under the act of 1853, commencing, by a decision of the Secretary of the Interior, on the 3d of February of that year, the day the act was approved.</p> <p>She now brings her petition claiming arrears of her pension from the 4th of March, 1848, to the 3d of February, 1853.</p> <p>The act of 1853 referred to the act of 1848, and adopted its provisions as to the rate, duration, and commencement of the pensions it grants.</p>

<p> The claimant brings his action to recover damages for propwty appropriated and destroyed in the bombardment of Gi'cytovm. He alleges that the acts complained of were authorized and ordered by the government. The government demurs. </p> <p>Tlio liability of the government for tlie destruction of property by a naval officer is generally a question of fact. It depends on the time and circumstances, and tbe necessity for tlie act, whether the government, the officer, or neither, is liable.</p>

<p>The petition alleges that the claimant is a “ laborer” in one of the offices of the Department of the Interior, and entitled to the 'increase of salary given by the joint resolution of 18th August, 1856, (11 Slat. L., 145.) The demurrer specifies for cause that the claimant is employed in a ” menial service,u and that his compensation was fixed by the act of 18th August, 1856, (11 Slat. 116J</p> <p>A demurrer founded on a fact not stated in the petition is bad. The fact should be pleaded specially if relied upon as a defence to the claim.</p>

<p> On, the Proofs. </p>

<p> On Demurrer. </p>

<p>The claimant agrees to furnish rations daily to ihp Marine Corps for the year 1861. Congress subsequently impose an additional duty on some of the articles to be furnished, whereby the cost of the rations is raised. The claimant, neva'thelcss, furnishes them and suffc?'s loss.</p> <p>The claimant again agrees to furnish similar rations during the year 1862. Congress subsequently pass the legal-tender act, whereby the cost of thcrations is again raised. The claimant, nevertheless, furnishes them, and again suffers loss.</p> <p>A contract between tbe government and a private party is not deemed to be specially affected, by tbe subsequent enactment of a general law. Tbe United States, as a contractor, are not ’ responsible for tbe United States as alaw*giver.</p> <p>Hence, where a general law is enacted whereby tbe cost of tbe goods to be furnished is increased, it is not a violation of an existing contract. Tbe law affects the contractor only as it affects all other citizens.</p> <p>In this court tbe United States can be held to no greater liability than other contractors in other courts.</p>

<p> On Demurrer. </p>

<p>The defen dant, after issue joined, filed eight specialpleas, one travelling the allegation in the petition that the original owners of the drafts sued upon have at alltimesbornetrue allegiance to the government, and have not aided or abetted the rebellion, fy-c.; the counsel for claimant moves to strike out these pleas.</p> <p>The jurisdiction of this court depends upon the allegations that the claimants and all former owners of the claim have borae true allegiance, &c., to the government, and have not aided &c., the rebellion. Therefore, they are allegations of substance, and if an issue raised thereon should be found against the claimant, it would be an end of the case.</p> <p>Leave to plead specially to these allegations, after issue joined, will be granted. This course will better promote the convenience of suitors than one which would require the Solicitor to interpose that plea in all cases.</p> <p>Where the drafts in suit were negotiated long before the rebellion began, tbe subsequent disloyalty of the original holders cannot prejudice the claimant.</p> <p>The proceedings in this court are not to be regulated in all respects by the common law system of special pleading. The pleadings need not present a single issue as in trials by jury. The Court will be controlled by the substance of things rather than by forms or technicalities.</p>

<p> On Demurrer. </p>

<p>A clerk in the General Land Office, with the consent of his superior. the Commissioner of the Land Office, is employed by the Clerk of the House of Representatives to prepare a map of the public lands under a resolution of the House. The services are valuable and mei'itorious, and are rendered upon the assurance of the officers who employ him that they do not fallwzthin the purview of the act of 23d August, 1842, and will be paid for justly.</p> <p>The rule in Stansbumfs case, p. 123, ante, is re-affirmed. A civil officer whose salary is fixed by law cannot hold another office or receive additional compensation for other and distinct service, even though the services were valuable, were additional to the duties of his office, and were rendered upon the assurance of the officers who employed him that he would be justly remunerated for them.</p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> The claimants plead a set-off in an action in the United States circuit court for the southern district of Neto York, and have a balance in their favor certified by the jury, in the manner provided by the latos of that State, They noto bring their action upon that verdict and judgment, and the question before the court is, what effect shall be given to them. </p> <p>The right to plead a set-off in an action brought by the United States is given by act of Congress, (3d March, 1797); the law of the State where the action is tried merely regulates the mode and ma/nner of enforcing it.</p> <p>The judgment rendered in favor of the defendant in such an action by a court of competent jurisdiction is conclusive of the same matter coming in question between the same parties in another court. Therefore the verdict of a jury in the circuit court of the United States for the southern district of New York, certifying a balance against the government, and the judgment entered thereon, are final and conclusive in this court; and the matters in controversy cannot be re-examined.</p> <p>Interest cannot be allowed on any claim except " upon a contract expressly stipulating for the payment of interest.” Act 3d March, 1863, 12 Stat. L., p. 765.</p>

<p>General Garland, commanding the department of New Mexico, calls oat volunteers to sewe for six months against the Indians. The claimant is not mustered in or regularly enlisted, but s&'ves with them vpioard of fourteen days. The Commissions)' of Pensions and the Secretary of the Interior deny his claim for a land warrant, on the ground that his services were rendered subsequent to act of 3d March ,1855. He brings this action “to establish his right to awarrant.”</p> <p>The Court of Claims has original jurisdiction of a case founded upon an application for a land warrant which has been decided upon by the Commissioner of Pensions, notwithstanding that the law provides that the decision of the Commissioner is final, subject only to appeal to-the Secretary of the Interior.</p> <p>The executive departments havo not a judicial nor even a quasi judicial character. Tlieir acts are not judicial, and are binding on executive officers, but not on the courts.</p> <p>War is that state in which a nation prosecutes its rights by force. Troops called into the military service to serve against the Indians are equally entitled with other troops to the benefits given by various acts of Congress.</p> <p>Military service in the prosecution of a war subsequent to the act of 3d March, 1855, (10 Stat, L., 701,) and prior to the act of 14th May, 1856, (11 Stat. L.', 8,) entitles such party to a land warrant. Such services are embraced within the terms employed by the latter law. It is not necessary that the party he mustered in, or formally enlisted, provided that he has served as “a volunteer with the armed forces of the United States, subject to military orders, for the space of fourteen days.”</p>

<p>The claimants execute a contract in the belief that it is for the sale of 9,000 bushels of potatoes deliverable as required. In fact, it is for “ such quantities (not exceeding 3,000 bushels peí' week) as may be required.” There has been a previous correspondence between the claimants and a commissary which led the claimants to this belief. But they have the contract in their possession two weeks before executing it, and it merely follows the terms of the government's advertisement instead of the terms of the claimants' bid.</p> <p>The claimants are ready to furnish the whole quantity of the potatoes, and sue to recover the contract price.</p> <p>Fraud or mistake cannot be imputed where the formal contract remains two'weeks in the claimants’ possession before execution, merely because it follows the terms of the government's advertisement and not the terms of the claimants’ bid, and differs from previous letters passing between the parties.</p> <p>A contract for the sale of potatoes “ in such quantities (¡not exceeding 3,000 bushels per week) and at such times as may be required,” compels the contractor to keep ready for delivery the maximum of one week (3,000 bushels) and obligates the government to take that amount.</p>

<p> ■On the Proofs. </p>

<p> On the Proofs. </p>

<p>A sub-Indian agent cnt&'s into a written contract for the purchase of supplies for the Indians. To pay instalments on the contract he draws drafts on the Secretary of the Interior. The Secretary declines to accept. The drafts are indorsed, and the contract is assigned to the claimants, who bring their action upon both, in their own names. It is admitted on the argument that the agent had no authority to draw the drafts so as to charge the government.</p> <p>A sub-Indian agent bas no authority to draw bills of exchange so as to bind the government.</p> <p>The transfer of a contract not assignable at law may operate as an equitable right to the sum due, yet it will not authorize the beneficiary to maintain a suit in his own name.</p>

<p>The Western Ghcroltees employ the claimants to prosecute an important claim against the government. Hiving no other means of compensating them, they give to them a portion of the claim itself. The claimants prosecute the claim and secure it by a treaty. When the treaty leaves the hands of the commissioners there is in it a provision securing to the claimants their portion. This the Senate strikes out and provides, by an amendment, that the fund shall not be assigned, and shall be paid to the Indians per capita. The amendment is ratified', but the Indians stillrecognize their obligation, and direct the Secretary of War to pay the claimants out of any moneys which may be found due to them under the treaty or othei'wise. Congress disregard the agreement, and appropriate money to pay the Indians directly. The claimants endeavor to collect the money from the Indians individually, but fail to. The tribe subsequently is united with others, and all possibility of collecting the money is lost.</p> <p>The government is always at liberty to change its policy, and cannot be held pecuniarily liable for so doing; nor can the prerogatives of legislative discretion be made subservient to the rights of an individual. Therefore, although the government for many years recognized assignments by the Indian tribes to their agents, and although the claimants act upon the faith of that policy and hold a power coupled with an interest, of which the government has notice, still a treaty maybe made which provides for the payment of all appropriations directly to the Indians, and declares that the fund shall not be assignable.</p> <p>A treaty is paramount law. It is the duty of Congress to comply with the terms of a treaty; and the government is not liable, because this renders nugatory an assignment from an Indian tribe to its agents.</p>

<p>A survey is delayed one month by an agent of the gov rnment. Subsequently it is delayed another month by the contractors themselves. By reason of the two delays, it cannot be completed durring the autumn, but has to be suspended and cairied over till the following spring.</p> <p>Where a survey is delayed, partly by an agent of the government and partly by the contractor, so that it cannot be completed during the autumn, and has to be suspended during the winter, the government is liable for the expenses and services of the contractors during the period of delay caused by its agent; but is not liable for the damages caused by the unavoidable suspension of the work during the ensuing winter, to which damages the contractors themselves contributed by their own delay.</p> <p>The remaining points determined turn on the provisions of the particular contract under consideration.</p>

<p>Floyd, as Secretary of War, accepts bills drawn on him by army contractors. As between the contractors and the government the acceptances are fraudulent and unlawful. The claimant buys the acceptances before maturity for a valuable consideration. He has notice that the Secretary is prohibited “by express law” from malting direct advance payment to the contractors, and that the only authority for giving them these acceptances is “the custom of the department.” “ The main question before the court is, whether these instruments are valid bills of exchange of the United States.”</p> <p>"The Secretary of War lias no general or unlimited power to bind, the government by indorsing or accepting negotiable paper.</p> <p>An acceptance given by the Secretary of War to contractors, upon whose contract no payments have become due, is either an advance upon the contract, or a loan of the public credit to tho contractors, both of which transactions are prohibted by express acts of Congress aud are illegal. (3 Stat. U, 723 ; 9 ib., 59.)</p> <p>The act to prevent frauds upon the treasury (10 Stat. L., 170) declares void “all transfers and assignments ” of claims against the United States, except in certain cases, ‘ ‘ or any part or share of, or interest therein.” The transfer of a portion of a claim by means of a bill of exchauge is in violation and evasion of the statute aud void.</p> <p>By the law of agency, at the common law, there is this difference between individuals and the government: the former are liable to the extent of the power they have apparently given to their agents, while the government is liable only to the extent of the power it has actually given to its officers. Per Loring, J.</p> <p>The illegality of the transaction goes to the very foundation of the Secretary’s authority. lie cannot be the agent of the United States to do that which the laws of the United States expressly forbid.</p> <p>Usage cannot aid the transaction. An illegal practice prevailing among officers of the government, no matter how long continued or extensive, cau never ripen into q binding usage.</p> <p>The distinctions between the case at bar and that of The Bank of the Mctroqiolis v. The United States, (15 Peters, 377,) stated.</p> <p>The duty of inquiry as to the power of a public officer is much more strict than if the transaction were between private parties.</p> <p>A statement made by a public officer to the purchaser of official acceptances, before the purchase, that there is “ an express law” against advancing money to the drawers, but that it lias been “the custom of the department” to aid parties under like circumstances by accepting their bills, is sufficientnotice of the illegal aud fraudulent character of the paper, and renders the acceptances void in the hands of the claimant.</p>

<p>A military officer of the United States becomes acting' governor of the Territory of California, The Territorial convention to frame a constitution continues him as u acting executive," and fixes his salary as such at $10,000 per annum. Congress ratify the acts of the convention and provide for the payment of its expenses. The claimant see/cs to recover the salary during the entire period he acted as governor, both before and after the sitting of the convention.</p> <p>Again Congress pass an act for the relief of General Riley directing that his expenditures be allowed to him on his producing the proper vouchers. The Third Auditor disallows certain items, thevouchers of which are produced, for the reason that they were improperly or erroneously paid. The claimant seeks to recover them.</p> <p>I. Congress by ratifying the acts of tho convention of California which gave to the “acting oxecutivo" a salary of $10,000, has ratified the same and made it a valid claim. But his salary cannot he recovered for services rendered before the act of tho convention.</p> <p>II. When an act of Congress directs the accounting officers of the treasury to credit a military officer “ with any sum or sums of money paid by him” for certain purposes, “ and also the sums of money advanced by him” for certain other purposes, on his producing the proper vouchers, an. auditor cannot reject certain items for which vouchers are produced, on. the ground that they were improperly or erroneously paid. The necessity or propriety of the advances covered by the vouchers is not open to discussion ; they were prejudged and determined by Congress.</p>

<p>The principal question in the case is virtually decided by the decision on the dcmu) rer. Ante.</p> <p>The evidence now shoios that the claimant protested against the assessment of the tax, but fails to show that he protested against the payment. The solicitor of the government insis $> that the payment was voluntary.</p> <p>The payment of an illegal tax is not voluntary, though no protest be made, for the collector is bound to collect the tax, and a protest would bo unavailing.</p> <p>When the regulations of tho Treasury require the manufacturer to pay the tax and look to the purchaser for reimbursement, tho government is liable if it be the purchaser.</p>

<p> The claimant agrees to "build one hundred array wagons subject to inspection before shipment. The wagons are inspected and approved by an inspector designated by the government. . The Quartermaster General directs them to be shipped, and they are shipped. On arrival a second inspection is ordered and they are rejected. The action is brought to recover the contract price. </p> <p>la the absence of fraud, an inspection and order to ship goods manufactured under a contract, which requires that they shall pass inspection at the place of manufacture, concludes the . government. No second inspection can be ordered, and the goods cannot bo rejected after shipment.</p>

<p> This is a branch of the Dc Gi'oot case. Congress authorize the Secretary of the Treasimj to settle with all the parties respectively interested in a contract for furnishing brich for the Washington aqueduct, provided that they first surrender to the United States the brich made, the machinery, 6fcf The claimant unites with the parties representing the original contractors in such surrender'to the government. The Secretary of the Treasury malees an award andpays the amiount thereof to the representatives of the original contractors. The claimant raises no objection and recovers through these parties a part of the award. He now claims that he was the owner of the brich-yard, fyc., that the award was not according to the submission, and that he is entitled to recover the damages, losses, fyc., sustained. </p> <p>An award is an entiro thing, and cannot be affirmed in part and disaffirmed in part. Where one accepts a benefit under an award he is estopped from denying its validity, and it is immaterial whether the award was made according to the submission or not.</p>

<p> On Demurrer. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p>An agreement of sale and purchase was made, whereby the Merchants' Exchange Company of Baltimore was to convey to the United States certain premises free frojn incumbrance, fyc., the conveyance to be executed often' the usual permission to occupy, fyc., should have been granted by the State legislature to the United States, and after the title shouldbeapprovedby the Attorney General. It is averred that permission to occupy, §c., was granted; that an appropriation to purchase was made by Congress; that a title was tendered for the approval of the Attorney General, which was rejected, but that at a subsequent period the title was approved by him, and that owing to his delay, fyc., taxes had to be paid by the vendofs, a/nd loss in rents resulted because the vendors had began to notify the tenants on the premises to vacate. Upon these facts damages were claimed.</p> <p>Orr a demurrer to the petition it ivas held: That the petition was defective in averment, and that as a pleading is to be most strongly construed against the pleaders, the petition should be dismissed.</p> <p>If a title is to bo submitted to the Attorney General for his approval, before the government consents to purchase, delay by that officer in passing upon the title will not furnish the foundation for a claim upon the government for damages, especially where it is not alleged thatthe delay was contumacious or unreasonable; or if so, that it was induced by the government.</p> <p>An averment that a party had begun to notify tenants to vacate, is too indefinite to show a loss of rent; a more conclusive averment will be required.</p> <p>If a title to real estate is to be submitted to the Attorney General for his approval before it is accepted, and he rejects it, nothing to the contrary being stated, it will be presumed, if he subsequently approve a title to the same premises, that objections to the title as at first presented have been obviated.</p> <p>Where an act of Congress directs that certain conditions shall precede the payment of money, it must appear that such conditions have been properly performed before damages can be recovered for delay in the payment of it.</p>

<p> On the Proofs. </p>

<p>A claim is referred by Congress to the Chief Engineer for examination and report. He reports, that the claimant is entitled to $11,243 63 if entitled to anything. Congress pass an act to „ pay the claimant a less amount. It is insisted that the report is an award, and that the claim-amt may recover the difference.</p> <p>The report of an officer to whom a claim has been, referred by Congress hypothetically stated, and founded upon hearsay and the statements of the claimant, is not an award and does not authorize a judgment.</p>

<p> On the Proofs. </p>

<p> The case involves no legal principle and is decided upon the claimant's evidence, there being no defence presented. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p> On the Proofs. </p>

<p>.Congress by joint resolution provide that all laborers in the “executive departments" shall receive a salary of $600. On the same day the general appropriation bill is passed, which appropriates for “the laborer in charge of the water'-closets in the Capitol," $438. The claimant is employed in the office of the Commissioner' of Public Buildings, and he has charge of the water-closets in the Capitol. The payment of the larger salary is resisted on the grounds: First, that his salary was fixed by the appropriation act; and Second, that the Commissioner of Public Buildings is no part of an executive department.</p> <p>An employé of the government is entitled to the salary allowed by law, and is not limited by the amount appropriated by Congress.</p> <p>The office of Commissioner of Public Buildings is, under the act of March 3,1849, (9 Stat. L., 395,) a bureau of the Department of the Interior; and a laborer in that office is a laborer in an “executive department" within the meaning of‘the joint resolution of August 18, 1856, 01 Stat. L., 145.)</p>

<p> The claimant alleges that Thorne was acting as agent of the government by authority of an assistant quartermaster, and as such, purchased lumber of the claimant, but he fails to give evidence as to these allegations. </p> <p>When a party sells goods to one -whom lie alleges to be the agent of a quartermaster, and all of the allegations of the petition are traversed, he must prove the appointment of both the quartermaster and of his agent.</p> <p>When a petition does not aver that an application has been made to the proper department to have tho claim adjusted, it will de dismissed.</p>

<p>The claimants contract with the Commissioner of Indian Affairs for the survey of the districts described in certain Indian treaties. An astronomer is to be appointed by the government, but paid by the claimants, who is to fix certain initialpoints. The government withdraws the troops holding the Indian country, and the claimants are prevented thereby from proceeding with their survey. The astronomer causes further delay by failing to fix an initial point. These facts are established chiefly by the evidence of one of the claimants.</p> <p>I. The rule iu Doming's case that “a contract between the government and an individual cannot he affected specially by a general law,” is extended to cases involving executive instead of legislative acts. Whatever acts the government may do, ho they legislative or executive, so long as they be public and general, cannot bo deemed specially to alter, modify, obstruct, or violate the particular contracts into which it enters with individuals.</p> <p>It is a principle applicable to all cases that the United States as a contractor cannot bo held liable for the public acts of the United States as a sovereign.</p> <p>II. An astronomer who assists contracting engineers in their survey and is paid with their monej'-, but who was not appointed by them and cannot he discharged by them, and who is not responsible to them, is not their agent.</p> <p>III. An act of Congress does not take áway a prerogative of the government except by special and particular words.</p> <p>The exclusive statutory right of tho government to examine a claimant in this court, and use or withhold his testimony at its option, is such a prerogative, and is not taken away by the act declaring that11 in courts of the United States there shall he no exclusion of any witness because he is a party to the issue tried ." (Stat L., p. 351, § 3.)</p> <p>Therefore, in this court, a party cannot testify in his own behalf. Casey, C. J., dissenting.</p> <p>IV. The jurisdiction of tho Court of Claims stated and reviowed.</p>

<p> On the Proofs. </p>

<p> On the Proofs and Report of Commissioner. </p>