Volume 10 — Court of Claims Reports

<p>During the years 1864-65 cotton is puraltased by the agents of the Confederate States. Some of it is sold to the claimant by an agent, payable in the currency of the United States. The claimant tmderstands that it is the property of the rebel government, and pwchases it as such. The agent has been specially instructed “ to sell any and all cotton lie can for the purpose of raising money to purchase munitions of war,” but this-purpose is not disclosed to the claimant. Se buys the cotton at its marlcet value, regarding it as a mere business transaction of cotton for cash. At the time of purchase he is a resident within the Confederate lines. The cotton is subsequently captured, but no proceedings to confiscate it have ever been instituted by the Government. The claimant brings his suit, under the Abandoned or captured property Act, for the proceeds in the Treasury. The court below decides that the claimant was chargeable ivith notice of the treasonable intent of the sale ; that the transaction was void; and that he acquired no title to the property. Judgment for the defendants. The claimant appeals.</p> <p>I. The doctrine that public policy may forbid courts of justice to allow any ■validity to certain contracts extends to an executed contract for the sale and delivery of personal property in a case where the purchaser voluntarily dealt with the Confederate government, and is now asserting a title to the property thus acquired in a suit to recover the proceeds thereof under the Abandoned or captured property Act. Such a contract is void as against public policy. The purchaser cannot base his right to the proceeds of the captured property upon an immoral transaction; nor did he acquire title to the property by the purchase and delivery. Clibeobd and Davis, JJ., concurring in the judgment upon this ground alone, and Field, J., dissenting.</p> <p>II. A purchase of cotton from the Confederate government during the rebellion, being immoral and void because of the treasonable purpose of the sale, is' not aided by the fact that the purchaser did not intend to aid the rebellion, and that he regarded it as a mere business transaction. He must be held to have intended the consequences of his own voluntary act.</p> <p>III. The recognition of the validity of certain acts of the ¡Confederate government and of the States in insurrection must be confined to those necessary in their recognition and administration to the existence of or-' ganized society It cannot be extended to acts of the Confederate government designed to prolong its own existence.</p> <p>IV. The actual exercise of physical power by the Confederate government upon an individual may justify or excuse acts otherwise indefensible ; but acts voluntarily performed by the individual in direct aid of the unlawful purpose of the Confederate government (rap. gr., a voluntary purchase of cotton from, it) can have no validity given to them by the courts of this country.</p>

On the defendants’ Appeal. The Reporters' statement of the case: The court below found the following facts, which fully present the two… Held: after verdict, that all was due her as administratrix.” “The remedy of agents for mere torts is confined to cases where their right of possession is injuriously invaded, or where they incur a personal responsibility or loss or damage in consequence of the tort.” (Story on Agency, § 416.) The right of the factor to the possession of…

<p> On the defendants7 Appeal. </p> <p>The Reporters’ statement of the ease:</p> <p>The article of the contract relating to the matter now in dispute is as follows:</p> <p>“Art. YIII. In all cases where stores have been'transported by the said William S. Shrewsbury under this agreement, a board of survey shall be called without delay, upon their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and, in cases of loss, deficiency, or damage, to investigate the facts and report the apparent causes, assess the amount of loss or injury, and state whether it was attributable to neglect or the want of care on the part of the contractor or to causes beyond his control; and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading, and shall conclude the payments to be made on it. For loss of weight, due to shrinkage, or for leakage of vinegar, or, molasses, or other liquids, the contractor shall not be liable, if the packages are delivered in good order and condition, and the board of survey shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractor or his agents. For deficiences or damages, the contractor shall pay the costs at the point he receives the articles, and freight shall be deducted in the latter casein proportion to the amount of damage assessed. Should no board of survey be called,, through failure on the part of the Quartermaster’s Department or other military authority to convene one, it shall be considered that the contractor has delivered all the stores, as specified in the bill of lading, in good order and condition, and he shall be paid accordingly.”</p> <p>With regard to the deficiency of the freight, the court below found as follows:</p> <p>“On the 2d June, 1865, the claimant’s transportation train No. 5 received, at Fort Leavenworth, Kans., eight hundred and fifty-eight sacks of corn, weighing in the aggregate 101,860 pounds, averaging 118f pounds per sack. The train arrived at Fort Lyon, Colo., in the latter part of July, and delivered the corn in good order, except that nine sacks, amounting to 1,069 pounds, were lost. But, by reason of the difference or imperfection of the scales used in the determination of the weight of the remainder, and the shrinkage in weight upon the road, the remaining eight hundred and forty-nine sacks were reported to weigh only 97,620 pounds, instead of 100,791 pounds, their weight when they left Fort Leavenworth, and the claimant toas charged with the loss of 3,171 pounds. A board of survey was ordered on the 31st July, 1865, which met ou the 1st August, 1865, and examined the supplies delivered.”</p> <p>The proceedings of this board are fully set forth in the opinion of the court, and also the payment pursuant to its recommendation, and the protest of the contractor.</p> <p>The court below erred in deciding that the proceedings of the boards of survey did not conform to the terms of the contract.</p> <p>The court erred in deciding that the claimant is entitled to the amount of deductions made by the board of survey.</p> <p>The court erred in assuming that an acceptance by the claimant of the terms of the proceedings and reports of the board •of survey was not a ratification of and a waiver of any informality in such proceedings, and that the claimant was not concluded by such acceptance.</p> <p>The court erred in deciding that the giving of receipts as in full for the services rendered did not conclude the claimant.</p> <p>The reports of the board of survey contaiued everything made necessary by the eighth article of the contract. The condition of the stores was reported, the deficiency in weight noted, and the liability of the contractor for damages and deficiencies, contained in the recommendations of the boards. These are all that the contract contemplated, and the exact form of report was left to the judgment of the boards. If there were any informalities in the reports of the boards of survey, the claimant waived them by acquiescence in the conclusions of the reports and acceptance of payment on the vouchers or bills of lading, which included the deductions ordered by the boards, as in full of all services of the various trains against which the •boards had charged deficiencies. The agreement was to submit the questions of the condition and quantity of the stores transported by the claimant to boards of survey, and their reports were to be conclusive as the payments to be made on the bills of lading or vouchers. Boards were ordered, and they met and examined the transported stores, and their proceedings were attached to the bills of lading. No protest or objection was made to the composition, the proceedings, or reports of the boards, nor any charge made of informality in the proceeding's or reports. The claimant accepted the conclusions of the boards as in full payment of all services rendered, and then protested against the deductions made by the boards. The boards were in the nature of an arbitration, acting for both parties. Where there is a submission to arbitration, after a ratification of an award and execution of its requirements, it is too late for the parties to set up any defect in the proceedings or in the award. In the case of Hoogs v. Morse (31 Cal., 128) the court says:</p> <p>“The action of the plaintiff in taking a judgment on the award, and then receiving the amount of the judgment in satisfaction, was a waiver of any errors or misconduct on the part of the arbitrators of which he had notice at the time, and he is charged with notice of all errors or misconduct which were known to his attorney. Under the circumstances of the case we are at loss to perceive how there could be any valid ground for setting aside the award at the instance of the plaintiff, except for fraud discovered after the plaintiff had accepted payment in full of the judgment.”</p> <p>And in Tudor v. Scorell (20 N. H., 174) it is said :</p> <p>“ But in general a party may waive a condition for which he has stipulated, and that principle seems applicable to the present case. Whatever advantages the parties might have contemplated in requiring the award to be made in writing, they were competent to waive that condition as to the whole or a part of the matters included in it.”</p> <p>If the proceedings were informal, the claimant had the option to accept or not any money under them ; but after he waived or cured the informality by acceptance of the terms of the reports, that acceptance was in conformity to the eighth article of contract, which says u the proceedings shall conclude the payment to be made on the bill of lading,” and the contractor cannot now claim that the payments shall not be final, or be in full, or conclude him. No verbal protest could disturb the finality of the claimant’s uncontrolled, deliberate action in accepting the amount awarded.</p> <p>A proper objection or x>rotest to the reports of the boards of survey would have been a refusal to receive the amount under the terms of the report; not, most certainly, a written receipt as in full of all services rendered by certain trains, even if accompanied by a verbal protest. A verbal protest to the reports or proceedings of the boards cannot be considered to have any effect when there is an acquiescence in the conclusions of the boards by an acceptance of the amount of the bills of lading, made in conformity to the reports, which the contract declared should conclude the payments. He could not have accepted the award without being concluded. The taking of the amount allowed by the boards of survey appointed pursuant to the contract, i. e., by the act of both parties, and giving the receipts as in full payment for all services rendered by certain trains, bring the case within the ruling of the Supreme Court in Justice, (14 Wall., 535;) Mason,' (17 id., 67 ;) and Sweeney, (17 id,., 75,) notwithstanding a promise on the part of the claimant to look elsewhere for the amount of the deductions. In fact, this case is more favorable for the United States than those quoted, because it is an acceptance of an award which the contract says shall conclude all payments on the bills of lading.</p> <p>It is unnecessary to regard the stipulation concerning the board of survey as in all respects amounting to an arbitration. It is sufficient to say that it was analogous to such a proceeding, and is to be governed by the same principles so far as they are applicable. Some method was necessary to determine the quantity and condition of the stores when delivered, and the responsibility for their loss or damage. It was a matter about which the contracting parties had the undoubted right to provide for by agreements between themselves. And as the law does not make agreements for parties, but only carries into effect such agreements as they make for themselves, I ask the consideration of the court to the precise terms agreed upon. The contractor consented that the officers constituting the board of survey might, for the purpose of ascertaining whether he had done his duty, do certain things, viz: Examine the quantity and condition of the stores transported, and, in cases of loss, deficiency, or damage, to investigate the facts; to report the apparent causes; to assess the amount of loss or injury; to state whether it was attributable to neglect or want of care on the part of the contractor or to causes beyond his control. These five points he agreed might be passed upon by the board; nothing more and nothing less.</p> <p>The court below, whose conclusions of fact cannot be appealed from, says:</p> <p>a The board did not investigate the facts; it did not report the apparent causes; it did not state whether the loss was attributed to neglect or the want of care on the part of the contractor or to causes, beyond his control.”</p> <p>All the board did was to examine the quantity and condition of the stores, and, finding a deficiency, assessed the amount of it — as a matter of course, to be docked from the freight money. ■The board ended the investigation where it should have begun it. Having ascertained that there was a deficiency, and the amount of it, then the issue arose as to whom it should be charged. For this purpose they were required to go on and investigate the facts concerning the deficiency, to report the causes of the deficiency, and to state whether, in their judgment, it was attributable to neglect or want of care on the part of the contractor or to causes beyond his control. The contract says these proceedings shall conclude the payments to be made; and I submit that these proceedings are necessary for that purpose. It will be observed that neither the commanding officer at the station nor the officer receiving the property, nor the officers constituting the board, had anything to do with the payment.of the freight money. A copy of these proceedings was to be attached to the bill of lading, and the payments were made at a distant point. The board therefore merely established the proceedings upon which another officer was to act in making up the accounts, and it was all-important that these proceedings- should be complete and in accordance with the contract.</p> <p>No case could better illustrate the necessity of complying with the precise terms of a submission than the one at bar. This same article YIII of the contract declares that the contractor shall not be liable for loss of weight due to shrinkage, if the packages should be delivered in good order; and the court below found that, as a matter of fact, the loss in these cases was due to shrinkage, and impliedly the board found the same fact, for ifc reported that tbe packages were in good order. If the board had taken the nest step which it was required to take, and reported the apparent causes of the deficiency, aud whether it was attributable to neglect or want of care on the part of the contractor or to causes beyond his control, a totally different result must have been reached.</p> <p>This contractor placed himself, to a great extent, in the hands of the Government. The fact that so many advantages were on the side of the appellant renders it all the more imperative that the conditions upon which those advantages were to be used should be complied with. He did not stipulate that when goods were received, a board of survey might examine into the weight, and, if a deficiency was found, that it might, in its discretion, charge him with the loss, regardless of all other facts. Yet this is precisely what was done.</p> <p>“ The power and authority of an arbitrator is derived entirely from the submission. He must therefore make his award strictly in pursuance and in conformity with the submission.” (Watson on Arbitration, 145.)</p> <p>“ It is a general rule that unless the arbitrator makes his award of all matters submitted to him, the award is entirely void.” {Ibid., 158.)</p> <p>“ Whenever a special authority is created, those who give it have a right to annex to it their own terms, with which he on whom it is conferred must comply.” (Russell on Arbitration, 3d edit., p. 235.)</p> <p>“ If the submission contain instructions concerning the form, execution, or publication of the award, they must be strictly followed.” (Morse on Arbitration, 259.)</p> <p>“An award owes, its force and validity to the agreement of the parties, and is not of course binding upon them unless it has been made in the manner which the agreement has pointed out.” (Tudor v. Scovell, 20 N. H., 174; Montague v. Smith, 13 Mass., 396; Allen v. Galpin, 9 Barb., 246.)</p> <p>Mr. Morse says: “ This rule, however, is so far limited in its application to essentials that it is not to be extended to frivolous inconsistencies or neglects. The award will not be vacated for matters of sheer insignificance.. On the other hand, considerable strictness is shown in determining what are essentials. Generally, however, it may be said that if the parties.distinctly agree that a certain specific formality shall be observed in the execution of the award, their express demand must be complied with, or the award will be had.” (Morse on Arbitration, 260.)</p> <p>It is further alleged by the appellant that if there were any informalities in the reports of the boards of survey, the claim* ant waived them by acquiescence in the conclusions of the reports and acceptance of payment on the vouchers or bills of lading.</p> <p>The argument for the appellant proceeds upon the misapprehension that the contractor obtained an award in his favor and received the money. Such is not the fact. The board of survey had no jurisdiction over' the matter of freight money. That was definitely fixed by the contract; there was no controversy concerning it. There was no award, and could be none, as to the moneys earned by the contractor, but the report had reference solely to the counter-charges claimed by the United States. The moneys received by the claimant had no reference to the matters considered by the board, and they were both paid and received with an explicit understanding that it was not to be a final adjustment.</p> <p>The cases cited in the brief for appellant are based upon the principle that a party cannot take the benefits of an award without accepting its disadvantages.</p> <p>There is no such principle involved here. The claimant took that which had no relation to the controversy, submitting for the time to the reduction, but giving notice that he would claim the amount withheld.</p> <p>The final ground of defense is that the claimant is concluded by the acceptance of the money and the receipt he signed. This is the familiar defense of accord and satisfaction. Blackstone says:</p> <p>“Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar of all actions upon this account; as if a man contract to build a house or deliver a horse, and fail in it, this is an injury for which the sufferer may have his remedy by action; but if the party injured accepts a sum of money or other thing as a satisfaction, this is a redress of that injury, and entirely takes away that action.” (Book III, p. 15.)</p> <p>The gist of the inquiry is whether the money was paid and accepted as a satisfaction. If it was, there is an end of the case. If it was not, the right of action remains.</p> <p>This court has had occasion to repeatedly consider the precise question, under what circumstances will the payment and receipt of money be held as sufficient evidence of this satisfaction! Of course the intention of the parties must govern; not the secret intentions or mental reservations, but the intention as evidenced by their acts and plain declarations.</p> <p>In the. case of Theodore Adams the claimant held large claims against the War Department, which the Secretary of War refused to pay or consider, except upon the investigation of the board known as the Holt, Davis and Campbell Commission. That commission gave the claimant an award for a reduced sum, and he signed a receipt in full of all demands, and afterwards received the money, signing a receipt in full for the account stated. No protest was made and nothing said on either side. This court held that the receipt was no bar,but the circumstances showed that the money was accepted in satisfaction of the entire claim. (7 Wall., 463.)</p> <p>Afterward it was attempted to take the case out of the rule by showing that Adams had not submitted his claim to the commission. But the court held that, as he had made himself a party to the proceedings and had accepted the money, he was concluded. Nothing was said in this case about a protest, none haying been made. (7 Wall., 463.)</p> <p>The next case, that of Child, Pratt & Pox, (12 Wall., 232,) was the same as Adams’, excepting it appeared affirmatively that claimants had not submitted their claims to the commission. The court again decided that the money was received in satisfaction of the claim, because it was a compromise fairly made. The opinion reads:</p> <p>“If there had been no reference to and no finding by the commission, it would still remain true that here was a claim the justice of which had been denied and the amount that was due on it had been in dispute for nearly two years. The Government finally says to the claimants, (We will pay you a certain sum on this disputed claim, provided you will take it in full satisfaction of the whole,’ when, without intimidation, without fraud or concealment on the part of the Government, without protest or objection on their part, the claimants accept the money offered, and sign a receipt acknowledging it to be in full of the whole claim. Is not this a legal and binding compromise of the disputed demand ? Is it not a voluntary adjustment of the matter in dispute between the parties!”</p> <p>This is a plain statement of the conditions required for an accord and satisfaction; and I insist that the case stated by the court differs in nearly every essential particular from the one at the bar.</p> <p>The case of Clyde, (13 Wall., 37,) was where a charter-party had been signed for the use of a steamer, and afterward the Government officers had reduced the rate of payment. Upon this a dispute arose, and subsequently the claimant accepted the reduced rate and signed a receipt in full. It was held that he received the amount in satisfaction of his claim. There was no objection or protest shown, and therefore it fell within the rule in Child, Pratt & Foods Case.</p> <p>The case of Justice, (14 Wall., 535,) was like that of Child, Pratt & Fox, excepting that no receipt was given. The court held that the acceptance of the money under the award made, without objection or protest, was conclusive upon the claimant, and that no receipt was necessary. Care was taken in this last case to define the limits of the rule laid down, as follows:</p> <p>“ It is always in the power of parties to compromise their differences. One way of doing this is by arbitrators mutually chosen; but from such submission neither party is at liberty to withdraw after the award is made. The condition of the Government creditor is better than this; for if dissatisfied with the allowance made him by the commission, he can refuse to receive it, or can accompany his receipt, if he chooses to take it, with a proper protest. This protest is necessary to inform the Government that the compromise is rejected, and that this rejection leaves the claimant free to litigate the matter in dispute before the Court of Claims. If with this knowledge and under these circumstances the money is paid, there can be no just cause of complaint, and the status of the parties is not affected by anything which transpired before the commission.</p> <p>. The rule here laid down covers this case and laps over all around. Even upon the extreme view taken by the Attorney-General, that the board of survey passed upon the whole claim, and that the claimant accepted the money under its award, it was only required, in order to preserve all of his rights, that he should protest at the time of receiving the money that it was not in satisfaction of the whole claim. If after such protest the officers saw fit to pay him, his status was not affected by such payment.</p>

On the defendants1 Appeal. The Reporters’ statement of the case: No opinion whs read in the court below, and there being a large number of similar cases in which the Government had the exclusive right of appeal, a judgment pro forma was rendered in this, which was then carried up as a test case. The facts found below fully appear in the opinion of the Supreme Court.

On the defendants’ Appeal. The Reporters' statement of the case : No opinion was read in the court below, and, there being other cases depending on the construction of the statute, in which the Government had the exclusive right of appeal, a judgment pro forma was rendered in this, which was carried up as a test-case.

On the claimants’ Appeal. The Reporters’ statement of the case: This case went up to the Supreme Court without an opinion in the court below, but the same question had previously been considered in Folsom’s Oase, (4 G. Gis. R., p.366,) where the Court of Claims reached the same conclusion now enunciated.

On the defendants’ Appeal. The Reporters’ statement of tbe case: The claimant’s petition alleged that in the fall of 1864 he furnished to the United States, at Point of Éocks and vicinity, west of Fort Lyon, O. T., on the Arkansas Eiver, under a written contract, 2,000 tons of hay, at the price of $38.50 per ton, all of which was duly received and paid for by the United States. “ Anticipáting a further demand for hay by .the United States at that point, your petitioner…

On the claimant’s Appeal. The Reporters’ statement of the ease : The following are the material averments of the petition presenting the grounds of the claimant’s case: Petitioner avers that he is unable to state the precise amount for which said cotton was sold, or the expenses attending the seizure, transportation, shipment, and sale thereof, but he states on information and belief that the said cotton netted $27,000, and perhaps more, and that at least that amount, as the…

On the claimant’s Appeal. The Reporters’ statement of tbe case: Tbe following facts were found by tbe court below: First. At tbe breaking out of tbe rebellion, tbe claimant, a citizen of tbe United States, resided at Louisville, in tbe State of Kentucky, where be was engaged in business.

On the defendants’ Appeal. The Reporters’ statement of tbe case: The parties agreed upon the following statement of facts: In this case the court finds the facts to be as agreed upon between the parties, through their respective counsel, as the case upon which the decision of the court is to be rendered, as follows: The claimants, on the 1st day of April, A. D. 1872, by the consideration of the Court of Claims, recovered ajudgment against the United States, under what is…

On the defendants’ Appeal. The Reporters’ statement of tbe case: The only question in tbe case rested on tbe act of incorporation, and is fully stated in the opinion of tho court. The court below erred in holding that the claimants had a legal existence; and in holding that the rebel legislature of Georgia could create a corporation capable of suing the United States after the suppression of the rebellion.

On the claimant's Appeal. The 'Reporters' statement of the case: The court below, being equally divided upon the law of the case, found the following facts for the purposes of an appeal: “I. John H. Piatt, the claimant’s intestate, on the 14th of January, 1814, entered into the written contract for furnishing rations to the Northwestern Army from the 1st day of June, 1814, to the 31st day of May, 1815, set forth and described in the petition. “II.

On the appeal of all Hie Parties. The Reporters'1 statement of the case: The decision of the Supreme Court iu this case turns entirely upon the construction of two contracts, and they, with all other material facts, axe fully stated in the opinion. It is submitted that the contract with Lobdell did not divest the title of Eglee to the cotton at the time of its execution, and that it was not at any time subsequent thereto divested in pursuance of that contract.

On the defendants’ motion for Mandamus. The Reporters’ statement of the ease : The following is the return made by the judges of the Court of Claims to the order of the Supreme Court requiring them to show cause why a mandamus should not issue: “ Pursuant to the order of the Supreme Court made the 19th day of April instant, requiring the judges of the Court of Claims to show cause why a writ of mandamus should not be issued to compel the Court of Claims to allow an appeal on…

<p> A surveyor of customs performs the duty of collector, and acts as a designated depositary of public moneys at Louisville. Louisville being a non-ennmerated port, the Treasury refuses to allow Mm commissions on transfei’-deposits and other moneys. </p> <p>The rule laid down in McLean’s Case, (8 C. Cls. R., 217,) that the maximum compensation to which a surveyor performing the duties of collector at a non-enumerated port is entitled is $5,000 a year, reaffirmed.</p>

On the Proofs. The claim is not one against the United States. At no time did the Congress assume the liability of States to individuals on claims of this character. On the contrary, by the Act .August 5,1790, (1 Stat.

On the Proofs. The Reporters’ statement of the case: The defendants, at the trial, offered in evidence two bills of sale, dated respectively December 23, 1862, and January 13, 1863, purporting to convey the claimant’s said cotton to the u Confederate States of America,” and to be signed by the claimant, and they requested the court to admit the same upon a comparison by the court of the signatures thereto with the signature of the claimant to his petition in this case, which…

On the Proofs. The Reporters' statement of the case: The owners claim in their petition $188,822.16 for damages sustained by them by the seizure and detention in the port of New York of their ship Meteor by the United States, on u the charge that she was being fitted out to commit hostilities against the government of Spain, in violation of the neutrality laws of the United States.” The case was referred to this court by the “ Joint Iiesohction relative to the steamship…

On the Proofs. The Reporten1 statement of the case: Prior to the 6th of November, 1866, Warren Faver, the claimant’s intestate, had located himself in a dug-out — that is, a hole in the side of a hill — about -three and a half miles from Fort Wallace, Kansas, and commenced catting wood on the reservation and in its vicinity, on the public domaiu of the United States, and hauling the wood and piling it near his dug-out.

On the Proofs. The Reporters' statement of the case: In the'month of March, 1862, John W. Davis, aii assistant surgeon of the Army of tbe United States, took possession, for the use of the Government, as a pest-house for soldiers of the Army who were afflicted with small-pox, of a three-story brick building near the town of Evansville, Ind.

On the Proofs. The Reporters' statement of the case : At Austin, Tex., in the month of January, 1866, Lieut.

<p>In a suit under the Abandoned or captured property Act, the claimant offers as evidence of title to the captured property his deed of a plantation in Louisiana, an account of the sequestration commission relating to the captured property, hut made out in the name of his -wife, and the letters or reports of officers eon-nected with the commission, to the effect that they believe the plantation to have hem owned by the husband and not by the applicant, his wife. Beyond this there is nothing to connect the plantation with the captured property, nor to shoiv that the latter teas a portion of the crop whicht he claimant made thereon.</p> <p>In a suit under the Abandoned or captured property Act, (12 Stat. L., 820,) evidence of title to the captured property is peculiarly evidence within the owner’s knowledge; and its absence cannot be supplied by remote legal presumptions or plausible conjectures.</p>

On the Proofs. The Reporters’ statement of the case: In the year 1866 or 1867 the claimant was employed by the foreman of the steam-heating and gas-works at the Naval Academy, at Annapolis, to work for the defendants at $2.50 a day, with, tbe understanding that during the season of steaming, which was' from the 1st of October to the 1st of June, his time of labor was to be twelve hours- a day.

<p> On the Proofs. </p>

<p>COLONEL ROBERTS’ CASE.</p>

<p>A captain in the Ninth Pennsylvania Regiment in the Revolution serves to the end of the war, and is entitled to half pay for life under the Resolution. October 21, 1780.” Committees of the House of Representatives twice report that he neves' received it or accepted commutation, and report a hill for payment to his heirs, which is passed hy the House hut not hy the Senate. Subsequently the administrator brings suit in this court. The counsel for the Government discovers and produces a “ retired officers' commutation-roll,” from the auditor-general’s office of the State of Pennsylvania, hearing the signature “ John Dayis.” The signature, being compared by counsel with Captain Davis’ signature on the roll of the Soeiety of the Cincinnati, is found and admitted to be veritable.</p> <p>The Besolve March 22,1783, authorized a commutation of the half pay for life pledged to officers of the Revolution who served till the end of the war, and the receipt of Government certificates issued in payment of such commutation bars a suit for the commutation by his heirs.</p>

On the Proofs. The Reporters’ statement of the case: The facts in these cases fully appear in the opinion of the court. Held: and so reported to the Secretary of the Interior, that Belding was entitled to the right of pre-emption. In this opinion the Secretary concurred, and directed that Beld-ing’s heirs be permitted to enter this land under the Pre-emption Acts of May 29,1830, and July 14, 1832.

On the Proofs. The Reporters’ statement of the case: From the 2d day of July, 1864, to the 1st of August, 1865, William P. Moore, jr., the claimant’s testator, during his lifetime, and after his decease the claimant, as his devisee, owned .certain lands and houses in New Berne, N. C., then under the control of the military forces of the United States, which were taken charge of and leased as abandoned property by an agent of the Treasury Department, and the rents therefrom,…

On the Proofs. The Reporters’ statement of the case : The claimant, before the war, had his domicile in the city of New Orleans, La., where he resided and was a partner with one Laforest, tinder the style of Laforest & Desmare, commission-merchants, and he was residing there also on the 19th of January, 1866.

<p> The clamant brings his action on a contract. The defendants set up a counterclaim for damages caused by the claimant’s breach of the same contract. The claimant calls as a witness to prove performance *one of the sureties who guaranteed the due performance of the contract. The defendants object to the witness, and move to strike out his deposition for incompetency. </p> <p>A surety who has guaranteed the due performance of a contract as to which a breach is alleged and damages are claimed is so connected with the transaction in dispute that a judgment for the contractor would entirely relieve him from all liability as surety. Therefore he is directly interested in the event of the suit, and is incompetent to be a witness for the contractor, both under the ordinary rules of the text-boots and under the Act June 25, 1868, (15 Stat. L., 75.)</p>

<p>The claimant alleges that certain personal property of his was seized, libelled, condemned, and forfeited by a decree of a district court, on the ground of his treason, and the proceeds paid into the Treasury; that by virtue of the Proclamation December 25, 1868, he was pardoned and released of all penalties, and “is entitled to receive from tlie United States the said proceeds.” The defendants demur.</p> <p>I. Blackstone’s Commentaries, at the time of the framing of the Constitution, was the authoritative test-hook on its subject, familiar not only to the legal profession, hut to all men of the general education of the framers of the Constitution, and as early as 1775 nearly as many copies were sold in America as in England. Therefore the hook belongs to the precise time of the Constitution, and is especially authoritative as to the sense in which the framers resorted to English constitutional law.</p> <p>II. By the law of England the king is lord paramount, from whom all lands are held, and, treason being a;breach of the condition upon which they are held, they return to the king by operation thereof; whence the English doctrine of the restoration of forfeitures being in the king; yet it is something distinct from the prerogative-power to pardon crimes, though it is vested in the same person. But the Constitution gives to Congress the power to dispose of the public property and to the President only the power to pardon crimes, and the President, having no title to forfeited property, like the king, cannot restore it, though he may pardon the offense which caused the forfeiture. Therefore property confiscated by judgment to the United States is beyond the reach of the executive clemency, and is absolutely national property.</p> <p>III. The term “ amnesty ” properly belongs to international law, and is applied to rebellions which by their magnitude are brought within the rules' of international law, but it has no technical meaning in the common law, and is merely the synonym of “ oblivion,” -which in the English law, is the synonym of “pardon.”</p>

On the Proofs. There is no authority in law for deduction of pay by reason of absence for sickness. Paragraph 1326 of Army Regulations of 1861 shows the only case where payment for absence shall be deducted, i. e., without leave, and then only when a satisfactory excuse has not been rendered. The appropriations by Congress were particular to pay the sick and wounded in the hospitals, convalescent camps, and elsewhere. (12 Stat. L., 825; see also Pension Act of 1866, 14 Stat.

<p> On the Proofs. </p>

On the Proofs. The Reporters’ statement of the case: On the 28th of August, I860, it was reported to the military authorities at Alexandria, La., that the steamer Doubloon, laden with commissary stores for that port, was hard aground on the falls above Alexandria, and that if she did not immediately receive assistance the stores would be thrown overboard and the vessel would be a wreck.

On the Proofs. The Reporters’ statement of the case: In. May, 1864, the claimant resided in Athens, Tenn., where he continued to reside till October of that year, when he enlisted in the Army of the-United States and continued in its service until the end of the rebellion. At the same time, in May, 1864, he owned 31 bales of cotton, which were then in a warehouse in Eome, Ga.

<p>The petition allegas that the claimant was a cleric in the Attorney-General’s Office, and that his salary for a portion of the time was not paid. The defendants file a special plea in dar, that during the same period the claimant was a cleric in the Treasury Department, and as such received his pay. The claimant demurs.</p> <p>A person holding two different offices under the Government cannot receive the X>ayof bothof them at the same time. The right to receive the pay of two offices is taken away by the Act September 30,1850, (9 Stat. L., p. 542, § 1,) ■which provides that the accounting officers of the Treasury “ shall in no case allow any pay to one individual of the salaries of two different offices on account of having performed the duties thereof Therefore one who holds at the same time a clerkship in the Treasury and another in the Attorney-General's Office, is debarred from recovering the salary of the one if he has been paid the salary of the other.</p>

<p>The Supreme Court decides that a cotton factor in Georgia, holding possession and having a lien for advances, cannot recover the whole of the proceeds of the cotton after capture, Tmt only so much as will re-iniburse him for his advances. (Ante p. 22.) The case remanded with instructions to enter judgment accordingly. The advances were made in Confederate currency, and the Supreme Court directs that the recovery he reduced to their worth in the money of the United Stales at the time they ivere made.</p> <p>I. Where the Supreme Court remands a case-with instructions to enter judgment in favor of a cotton factor for his advances, he claiming to he the owner within the meaning of the Abandoned or captured property Act, commissions will not he allowed. Commissions accrue from contract, express or implied, for services performed ; and where cotton was taken from a factor before sale hy capture, it is as if the cotton had been destroyed before sale in his hands.</p> <p>II. Where a cotton factor has possession, with a lien for his advances, and the property is captured while in his hands, and he brings suit for the * proceeds under the Abandoned or captured properly Act, he may recover interest on his advances up to the time of judgment, provided that the recovery does not exceed the amount of the proceeds. The interest thus recovered is not against the Government, but out of a fund belonging to the factor's principal which the Government holds in trust.</p>

On motion for Receiver. The Reporters’ statement: On the settlement of the decree in this case at chambers, and on the defendants’ application for the appointment of a receiver, the parties were represented by their counsel, respectively, (see p. 289 ante.) The court filed the following opinion at the.time of filing the decree: The solicitude which the parties have evinced with regard to the appointment of a receiver and the effect of an appeal to the Supreme Court render it…

On the Proofs. The Reporters’ statement of the case: The facts found by the court were exceedingly voluminous, but those necessary to an understanding of the point determined sufficiently appear in the opinion. The articles of partnership in question contemplated that each of the three parties should pursue such business as he pleased ; all should aid each with money; and the net profits, should constitute a common fund.

On the Proofs. The Reporters’ statement of tlie case: The court found these facts for the purpose of an appeal: I. Under and in pursuance of the Act February 22, 1867, (14 Stat.

On the Proofs. The Reporters’ statement of tlie case: The petitioners, citizens of the United States, were owners of the ship Semiramis, E. A. Gerrish, master, on and before September 23,1S72, in the port of San Francisco.

<p> On the Proofs. </p>

On the Proofs. The Reporters’ statement of tbe case : I. In February, 1862, the claimant, a citizen of the United States, was domiciled in Nashville, Tenn. At that time he was indorser upon the commercial paper of the firm of Fite, Shepard & Co., a house doing business in Nashville, and he was closely connected with individual members of the firm, one of them being his son.

On the Proofs. The claimant’s right to maintain this action depends upon the construction which shall be given to the act of Congress approved July 16,1862, taken in connection with the act of Congress approved March 3, 1865.

On the Proofs. The Reporters'1 statement of the case: The facts here sufficiently appear in the opinion of the court. This collision occurred under the Act April 29, 1864, (13 Stat. L., 58.) Under that act naval as well as mercantile vessels were required to carry lights and to obey the sailing directions contained in it. The only exception in favor of naval vessels was in regard to carrying lights when, under special circumstances, they were dispensed with by an order.

On the Proofs. The Reporters’ statement of the case: The findings of the court were of great length, but the opinion sufficiently presents the facts of this case. These were valid authorized contracts made in behalf of the United States with the claimant. There was a faithful performance 'of those contracts by the claimant, so far as it was allowed to proceed.

On the Oommissioner’s Report. The Reporters* statement of tbe case: Commissioner Eveleth’s report comprised the following : In pursuance of tbe order of this court, dated on tbe 4th day of June, 1873, appointing me a special commissioner for certain purposes therein set forth, I submit the above-entitled causes and the following report, embracing transactions in regard to cotton captured in the State of Mississippi during the years. 1863, 1864, and 1865, the records not…

On the Proofs. The Reporters' statement of tbe case: The two cases of the State and Merchants’ National Banks of Boston were heard together. Each claimed pro forma to have held the title to the gold-certificates, but the suits were not adverse, that of the Merchants’ Bank being brought for greater precaution lest the title of the State Bank should not be sustained. The evidence was the same in both suits and the facts found substantially identical.

On the Proofs. The Reporters’ statement of the case: The court found the following facts: I. The claimant, between the 1st day of January, 1873, and the 1st day of March, 1874, both inclusive, at the request of the defendants, rendered to them certain valuable services in the transportation of their mails over the Union Pacific Eailroad, the same being transported at fair and reasonable rates of compensation, not exceeding the amounts paid by private parties for the same…

On the Proofs. The Reporters’ statement of the case: The court found the following facts : In May, 1868, the petitioner was a captain of the Thirtieth Begiment of Infantry and brevet major, stationed and on duty at Fort Sidney, in Nebraska, which post, with others, was under the command of General Potter.