Volume 32 — Court of Claims Reports

<p> On the Proofs. </p> <p>Judgment is entered against tie United States and the Apache Indians in 1892 on stipulation as a preferred case. In 1894 the defendants file a motion for a new trial, alleging that “suit may not be maintained against the Agache Indians generally,” and that “the degreda, tions alleged were not committed by the Agache Indians.” The different hands of Apache Indians were never under separate treaty relations. Claimant contends that the Apache nation as such is alone responsible. The first depredation was committed by the Mimbres; the others by the Arivaipas bands of the Gila Apaches.</p> <p>I.The United States by the Treaty July 1,1852 (10 Stat. L., 979),recog-nized the Apache Indians “situate and living within the United States ” as a nation. Three other treaties made subsequently were with a lesser number of Indians, but the United States have never recognized the separate bands of the Apaches by treaty.</p> <p>II.The policy of the United States has been to accept the subdivisions of the Indians as by them adopted and to treat with them accordingly.</p> <p>III. If a subdivision has been recognized by the proper officers of the Government, the court will accept that as a sufficient recognition upon which to rest a judgment.</p> <p>IV. When the court has ascertained that a depredation has been committed by Indians belonging to á band, tribe, or nation in amity with, the United States, whether recognized as such by treaty or otherwise, the act of 1891 applies, and the court has jurisdiction under it.</p> <p>Y. When a depredation is alleged to have been committed by a tribe or nation without more particular identification, the defendants may restrict the liability by showing that the depredation was committed by Indians belonging to a particular band of the tribe.</p> <p>VI. The Mimbres not being at the time of the dejiredation in amity with the United States, the question whether the Aiiaches, as a tribe, were, need not be considered.</p> <p>VII. The Arivaipa band was in amity with the United States July 22, 1868; May 11, 1869, and December 18, 1870.</p> <p>VIII.A judgment will be allowed to stand, if an error can be corrected by the claimants remitting a part.</p>

The Reporters'1 statement of the ease: The grounds for the motion sufficiently appear in the opinion of the court. Held: incompetent. (Allen v. Hundas, 3 T. R., 125.) Payment to an executor who has procured probate of a forged will is good discharge, the probate being evidence of his authority in a collateral proceeding. (Ooolce v. Bangs, 31 Fed. Rep., 640.) A justice of the peace tries a man for assault and battery, and convicts.

The Reporters’ statement of tbe case: The facts of the case sufficiently appear in the opinion of the court. When the claim was allowed by the Secretary of the Interior, according to the practices of that Department, it was unquestionably intended that said allowance should be in full satisfaction of the claimant’s demand ag'ainstthe United States and the defendant Indians.

The Reporters’ statement of tbe ease: The allegations of the petition demurred to are set forth in the opinion of the court. If the Congress had purposed to create a “trust fund” out of such moneys, and to have made the Secretary of the Treasury or other officer a trustee for the benefit of the payee, they would have said so, plainly and unmistakably, as was done in the case of the surplus proceeds of direct tax sales in certain parishes in South Carolina.

<p>The Reporters’ statement of tbe case:</p> <p>This was a motion for new trial on the question of loyalty.</p>

<p>The Reporters’ statement of the case:</p> <p>The facts of the case sufficiently appear in the opinion of the court.</p>

The Reporters’’ statement of tbe case: Tbe following are tbe facts of tbe case as found by tbe court: I. On tbe 25tb day of January, 1889, tbe claimants and defendant made and entered into a contract, a copy of wbicb is attached to tbe original petition, marked Exhibit A. To said contract are attached advertisement and specifications, the material portions of which as applicable to the claim are as follows, to wit: “ SPECIFICATION EOR THE LABOR AND MATERIALS EOR ENLARGING…

The Reporters7 statement of tbe case: Tbe following are tbe facts of tbe case as found by tbe court: I. Tbomas B. Yan Burén, a citizen of the United States, was appointed consul-general of tbe United States at tbe port of Yokohama, Japan, and held office from June, 1874, until June, 1885.

<p>The Reporters’ statement of tbe case:</p> <p>Tbe material facts of this case are stated in tbe opinion of tbe court.</p>

The Reporters'1 statement of tbe case: Tbe following are the facts of tbe case as found by tbe court: I. Tbe claimant presented this claim to tbe Secretary of tbe Interior February 13,1871.

The Reporters’ statement of tbe case: The following- are tbe facts of the case as found by tbe court: I. Tbe claimant is a mate in tbe Navy of the United States. II. December 4,1884, be was ordered to tbe U. S. S. Wyan-dotte, a receiving ship at the Washington Navy-Yard, where be was to serve until December 4, 1887, unless otherwise ordered.

The Reporters’ statement of tbe ease: The following are the facts of the case as found by the court: I. The claimant filed, prior to July 1,1891, under section 232, Act of October 1,1890 (26 Stat.

The Reporters’ statement of tbe case: Tbe following are tbe facts in. tbe case as found by tbe court: I. O. T. Welch is tbe administrator of tbe estate of Aaron Decker, deceased. II. Tbe deceased claimant, Aaron Decker, was a native-born citizen of tbe United States, residing at tbe time of bis death in Bourbon County, Kans. Tbe defendant Indians were at tbe time of tbe depredation, hereinafter set forth, in amity and treaty relations with tbe United States. III.

The Reporters’ statement of the case: The following are the facts in the case as found by the court: I. The claimant was appointed second assistant engineer in the Navy on April 21, 1863. Under the regulations of the Navy Department he became eligible for examination for promotion. to the grade of first assistant engineer on September 3,1868, having completed three years’ service at sea on the preceding day. He was not, however, examined for promotion until April, 1874.

The Reporters’ statement of the case: The following are the facts in tlie case as found by the court: I. The following is the letter of the Attorney-General under which the marshal offered the reward therein named for the arrest, delivery, and conviction of Asa McNeil: “Department of Justice, “ Washington, I). 0., July 31,1891. “E. C. Weeks, Esq., uJachsonville, Florida. “ Sir : Torir letter of July 24th is received.

The Reporters’ statement of the case: The following are the facts in the case as found by the court: I. The plaintiff, Gasper H. Conrad, jr., was on and prior to the 1st day of September, in the year 1893, a cadet of the first ■ class in the Military Academy of the United States. II.

The Reporters7 statement of the case: The averments of the petition and the grounds of the demurrer will be found in the opinion of the court. I. Implied contracts. An implied contract is none the less a contract, and all the elements of a contract — privity, certainty, mutuality of agreement — are necessary to its existence.

The Reporters’ statement of tbe case: Tbe grounds of tbe defendants’ demurrer are stated in the opinion of tbe court. Tbe various laws which relate to tbe disposition of tbe public domain form a comprehensive system, in' which it is impossible to touch upon any branch without in some wise affecting the whole system.

The Reporters’ statement of the case: The grounds of the defendant’s motion are set forth in the opinion of the court. Held: that it was barred by the statute of limitation. (Fx parte Sanies, 1 Cheves (S. 0.) Eq., 203.) The provisions of a statute limiting the time within which an action must be brought is not a statute of limitation. The statute confers a right which did not exist before, and must be strictly complied with.

The Reporters’ statement of the case: The claimant’s attorneys’ motion was for leave to waive an allowance of fees to the attorneys, in the judgment.

The Reporters1 statement of tbe case: The following are the facts of the case as found by the court: I. The claimant, said company, is a manufacturer of tobacco, and, as such, on and for some time prior to the 2d of April, 1893, occupied a building at the corner of Second avenue and Thirty-eighth street, in the city of New York, in the third internal-revenue district in said State, as a factory for the manufacture of tobacco, said factory being known as No. 30 in said…

The Reporters’ statement of tlie case: The following are the facts of the case as found by the court: Richard D. Skelly was employed as a letter carrier at the city of Chicago, from March 11, 1889, up to and including April 1,1890. Such number of hours in excess of eight hours per day as at the pro rata compensation which he was by law receiving amounted to tlie sum of $85.39.

The Reporters1 statement of the ease: The facts which gave rise to the instructions of the court embodied in the following’ opinion will be found stated therein.

The Reporters1 statement of the ease: The following are the facts of the case as found by the court: I. The claimant, John F. King, was from the 23d day of February, in the year 1891, to the 19th day of April, in the year 1893, a letter carrier at Station G of the post-office at New York, in the State of New York, of the class entitled to a salary of $600 a year to the 30th day of June, in the year 1891, and $800 a year to the 30th day of June, 1892, and $1,000 a year…

The Reporters’ statement of the ease: The following are the facts of the case as found by the court: I. The Secretary of the Navy, on the 4th of July, 1861, in his message to Congress recommended the appointment of a proper and competent board to inquire into the subject of floating batteries or ironclad steamers and make a report. Under the act of August 3,1861, a board was appointed. An advertisement was published August 7,1861, inviting the submission of designs.

The Reporters1 statement of the case : The facts found by the court in this case, so far as they present the legal questions involved, are set forth in the opinion of the court.

The Reporters’ statement of the case: The following are-the facts of the case as found by the court: I. The claimant, Christopher Dart, was clerk of the District Court of the United States for the eastern district of Texas from March 16, 1893, to March 31, 1894, duly qualified and acting. II.

The Reporters’ statement of tbe case: The depredation alleged in this case was committed September 12,1863, in San Miguel County, N. Mes., by Indians of the Navajo tribe. The documentary and official evidence upon which the case was considered will be found in the opinion of the court.

The Reporters’ statement of the case: The facts of this ease are stated in the opinion of the court: The Attorney-General is the chief law officer of the Government; his opinions are given as the counsel for the Government. As counsel for the Government, his opinions are intended to direct the action of the Executive Departments. They are without binding effect.

The Reporters’ statement of the case: No findings were filed in this case, but the facts will be found stated in thé opinion of the court. In February, 1888, the petitioner, by trade a horse-trainer, arrived in Boston in search of employment, and read an advertisement in the newspapers calling for men for the United States mounted service. Thinking service in the cavalry might be suitable, he went to the United States recruiting office in Boston to inquire into the matter.

The Reporters’ statement of the case : The following are the facts of the case as found by the court: I. On August 5, 1892, the claimant was… Held: “It (the law), therefore, in effect appropriates the land for the street by its own force, and the direction respecting the time and agency for opening it are but incidents to the main purpose.” ( West et al. v. Blalce, 4 Blackf., 234.) Acts declaring nonnavigable rivers henceforth navigable, stopping the collection of tolls on…

The Reporters’ statement of the case: The following are the facts of the case, as found by the court: I. The claimant is a citizen of the United States and a resident of the District of Columbia. On July 21,1893, letters testamentary upon the estate of John C. Kelton, late of the District of Columbia, deceased, were issued to the claimant, by order of the Supreme Court of the District of Columbia. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. At the time of the depredation hereinafter found, Estanislao Montoya, Desiderio Montoya, and Eutimio Montoya were partners, doing- business in Socorro County, N. Mes., under the name and style of E. Montoya & Sons, and were at the time, and long prior thereto, citizens of the United States, residing at San Antonio, in said county and Territory.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant was commissioned as a passed assistant engineer in the Navy of the United States October 29,1874, and is still serving. II.

The Reporters’ statement of the case: The allegations of the defendants’ plea of set-off and the record of the two cases are stated in the opinion of the court. It is hardly necessary to cite authorities to the fact that the contract of suretyship is to be strictly construed. “Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant was appointed, by the Secretary of the Navy, civil engineer at the navy-yard, Norfolk, Va., April 3, 1852, and served as such from that date until September 8,1864— twelve years, five months, five days — when he resigned. II. Under and pursuant to the provisions of the Act 2d March, 1.867 (Bev.

The Reporters’ statement of the case: The record in this case contains the depositions of nineteen witnesses for the claimant and nine for the defendants, and nine written arguments; but the decision of the court relates only to the single question whether the loan authorized by the State of Mississippi, 19th December, 1861, was in aid of the rebellion, and a subscription to that loan by a citizen of Mississippi an act- of aid and comfort.

The Reporters’ statement of the case: The facts of this case will be found in the opinion of the court. The post-office department of the confederate government instructed the mail carriers who were acting under contract with the United States at the date of secession to continue to carry the mail and to account to the United States for all money received until the'post-office department of the Confederacy should be in a situation to assume the control of the service.

The Reporters’ statement of tbe case: This case not being appealable, no findings were filed, but the facts will be found stated in the opinion of the court.

The Reporters’ statement of the case: No findings were filed in this case, but the facts will be found stated in the opinion of the court.

The Reporters’ statement of the case: No findings were filed in this case, but the facts will be found in the opinion of the court.

The Reporters1 statement of the case: The alleged depredation in this case was committed by the defendant Indians between the 15th and 30th day of March, 1877, at Fletchers ranch, Lawrence County, Dak. The only question considered by the court related to the intent and effect of the treaty. But the latter part of the question was reconsidered by the court on the claimant’s motion for a new trial, and a different conclusion was reached from that stated in the present decision.

The Reporters’ statement of tbe case: Tbe following ate tbe facts of tbis case as found by tbe court: I. March 5, 1884, plaintiff made with defendants a contract in relation to postal service.

The Reporters’ statement of the case: The facts upon which the motion is based will be found stated in the opinion of the court. The petition for the grant of letters shows that the drafts were drawn on the bank in New York by a bank in Santa Fe, N. Mex.

The Meporters’ statement of the case: As the decision in this case would effect a large number of the cases pending, all counsel who desired to be heard were heard at the argument of the claimant’s motion for anew trial. No new facts were presented, the sole question discussed being as to what effect should be given, if any, to the treaties of 1867-68.

The Reporters'1 statement of tlie case: This was an allowed case in which judgment was rendered for the claimant, neither party electing to reopen. Subsequently the Attorney-General became satisfied that the claimant was not a citizen at tbe time of tbe depredation and moved to vacate tbe judgment for want of jurisdiction. Tbe facts upon wbicb tbe claimant relied to establish bis citizenship appear in tbe opinion of tbe court.

The Reporters' statement of the ease: In this case the question was raised by the Attorney-General whether the excepted parishes in Louisiana were or were not within the “seat of war” within the intent and meaning of the Bowman Act.

The Reporters’ statement of the case: The following are the facts of this case as found by the court: I. Under the act of July 1,1879, entitled «An act to provide office rooms for the National Board of Health and for the publication of its reports and papers, and for other purposes” (21 Stat.

The Reporters'’ statement of the case: The facts of this case are given in the opinion of the court. As this was an equity case in which the whole of the record would go up to the Supreme Court, if au appeal should be taken, no findings were filed.

<p>The Reporters1 statement of the case:</p> <p>The facts of the case will be found stated in the opinion of the court.</p>

<p>The Reporters’ statement of the case:</p> <p>The facts of this case will be found set forth in the opinion of the court.</p>

The Reporters’ statement of tbe case: Tbe allegations of tbe petition demurred to are set forth in tbe opinion of tbe court.

The Reporters’ statement of tbe ease: Tbe following are tbe facts of tbe case as found by tbe court: I. Tbe claimant, a corporation, operated continuously from December 1, 1886, to July 1, 1S88, a railroad running from Evansville to Washington, Ind., which was designated as mail route No. 22026, over which the claimant contracted to carry the mails of the United States for the period and at the compensation fixed in the following order: “1884, Sept. 4, No. 14060.

The Reporters’ statement of the case: The following are the facts of the case as found by the court r I. The claimant is a corporation duly chartered and organized in January, 1891, under the laws of the State of Missouri, and as such corporation it did, from May 18,1891, to July 1, 1891, under a contract with the United States and for a compensation of $77.81 per mile per annum, transport the United States mail between Birds Point, in Missouri, and Texarkana, in Arkansas, a…

The Reporters’ statement of the case: This case came before the court upon demurrer to the claimant’s petition. The allegations of the petition are sufficiently set forth in the opinion of the court.

The Reporters’ statement of tbe case: The allegations of the petition are stated in the opinion of the court. The defendants’ motion was in the nature of a demurrer to the jurisdiction.

<p> On the defendants'1 Motion. </p> <p>The defendants move for a new trial on the ground that the defendant Indians were not in amity.</p> <p>I. The Sioux and Cheyenne tribes of Indians were in amity from January 1, 1864, to July 28, 1864; they were not in amity from July 28, 1864, to October 28, 1865.</p> <p>II. The history of the hostilities of the Sioux, Northern Cheyennes, and Northern Arapahoes during the years 1864, 1865, 1866 examined and set forth.</p>

<p> On the defendants’ Motion. </p> <p>This is an allowed case where the defendants do not elect to reopen but move to dismiss the claimant’s election not to reopen on the grounds that the treaty of September 17,1851, with the Sioux was never ratified, and that the treaty of February 18, 1861, with the Cheyennes did not provide for the payment of depredations.</p> <p>I. Where a treaty witlt a tribe of Indians, though not formally ratified and proclaimed, was acted upon by Congress and appropriations were made for a series of years to carry it into effect, and it was ■ recognized as binding by the political departments of the Government and its benefits accepted by the Indians, it will be held to have been a treaty within the meaning of the Act March S, 1S85 (23 Stat. L., 376).</p> <p>II. The treaty of 1861 with the Cheyennes (12 Stat. L., 1163) contained no provision for the payment of depredations committed, and did not authorize the Secretary of the Interior to allow such claims.</p>

The Reporters'* statement of tbe case: The following are tbe facts of tbe case as found by tbe court: I. At and before tbe time of tbe depredations hereinafter found, the claimant was and ever since has been a citizen of tbe United States, now residing at Eivera, Los Angeles County, in tbe State of California. II.

<p>The court below decides:</p> <p>2. A power of attorney given by a builder to a bank to secure future advances for the erection of a public building, which authorizes the bank to “receive our last estimate from the United, States on our contract for erection of U. S. custom-house at Galveston,” is absolutely void under Revised Statutes § 3477. The Secretary of the Treasury could give effect to such an instrument only by paying “the last estimate,” which payment would be obligatory upon the contractor.</p> <p>4. No officer of the Government can do any act which will take assignments and powers of attorney out of the operation of the Revised ' Statutes § 3477.</p>