Volume 41 — Court of Claims Reports

The Reporters1 statement of the case: The following are the facts of the case as found by the court: I. The claimant, Frank W. Mahin, is a citizen of the United States, and was duly appointed United States consul at Reichenberg, Austria, on December 18, 1897. He took charge of the consulate there on the 1st day of February, 1898. II.

<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'1 statement of the case: The following are the facts of the case as found by the court: I. The court, upon the evidence and after hearing the arguments and considering the same with the briefs of counsel on each side, determine the facts to be as follows: 1.

The Reporters’’ statement of the case: The following are the facts of the case as found by the court: . I. The claimant, the Bethlehem Steel Company, is a corporation incorporated and existing under the laws of the State of Pennsylvania.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Franklin J. Moses, was a captain in the United States Marine Corps. On October 11, 1900, he was assigned to the command of a company en route to Cavite, P. I., by way of the U. S. S. Brooklyn. He arrived at Cavite November 3, 1900, and was on duty at said place with troops until January 11,1903. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, Samuel Heed Colhoun, is, and was at the times hereinafter referred to, a pay director with the rank of captain of more than twenty years’ service in the Navy. II.

The Reporters’ statement of the case: The following are tire facts of the case as found by the court: I. The claimant, Donn C. Mitchell, was enrolled in the Volunteer Army, during the Spanish war, as second lieutenant of Troop E, First Ohio Volunteer Cavalry, on the 3d day of May, 1898. He served in the grade of second lieutenant until promoted to first lieutenant October 20, 1898. He was mustered out as first lieutenant October 23, 1898.

The Reporters' statement of the case: After the findings of the court had been filed and judgment entered in this case the parties agreed upon a restatement of the facts, the purpose being to present more fully, to the Supreme Court some questions in the case which were not presented on the trial to this court. It is these new amended findings of fact which are set forth herein.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. Claimant, Henry H. Stilling, is a citizen of the United States, has always borne true allegiance thereto, is the sole owner of the claim embraced in this suit, and has made no assignment or transfer of. said claim or of any part thereof or interest therein. II.

<p>The Reporters'1 statement of the case:</p> <p>The facts of the case are fully set forth in 37 C. Cls. R., 2G2.</p>

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, Edward H. Owen, was clerk of the District Court of the United States for the Southern District of California from July 1,1898, to June 30,1902, duly qualified and acting-. II. For services during said period on behalf of the United.

The Reporters'1 statement of the case: The facts of the case sufficiently appear in the opinion of the court. Mr. J. A. Tanner (with whom was Mr. Assitant Attorney-General Pradi) for the demurrer: The verbal direction of General Randall, U. S. A., given to the claimant to “ go ahead, etc., and be ready to handle ” the cargoes of certain steamers which were subsequently to arrive, is not a legal contract within the meaning of section 3744 of the Revised Statutes.

The Reporters'1 statement of the case: The following are the facts of the case, as found by the court: T. The claimant, Samuel C. Cox, in July, 1898, was an assistant surgeon and a mounted officer in the First Iiegiment District of Columbia Volunteer Infantry, and was the owner of a roan mare, 1 years old, about 15 hands highland worth $150, which he brought into the military service of the United States in a sound and healthy condition. II.

The Reporters'- statement of the case: The following are the facts of the case as found by the court: I. Special jurisdiction to hear and determine this case was conferred on the Court .of Claims by act of Congress of May 27,1902, in the following- words: “ That jurisdiction is hereby conferred on the Court of Claims to hear and determine the claim of* Rinaldo P. Smith, of Baltimore,’Maryland, against the Government of the United States on account of the sale, purchase, or…

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

The Reporters’ statement of the case: The following are facts of the case as found by the court: I. The claimant, James W. Beach was and is a citizen of the State of Illinois.and of the United States, residing in the city of Chicago, in the State of Illinois, and has at all times borne true allegiance to the Government of the United States, and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government; and is t}ie owner of…

The Reporters’ statement of the case: The following are the facts of the case as found, by the court: I. The claimant, William T. Bishop, was commissioned August 23,1899, as a 1st lieutenant of the volunteers for service in the Philippine Islands authorized by the act of March 2, 1899, and ivas assigned to the 47th Regiment United States Volunteer Infantry.

The Reporters’ statement of tile case: Tlie following are the facts of the case as found by the court: I. On the 29th day of December, in the year 1902, the Navy Department issued the following circular: “ DEPARTMENT 03?

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein is a corporation incorporated under the laws of the State of Pennsylvania, and carries on the business of ship and engine building, with its yards and plant and works located in the city of Philadelphia, in said State. II.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant’s regiment was ordered from Plattsburg Barracks, N. Y., to San Francisco, Cal. The claimant, being sick, was unable to travel with his regiment, and was, by proper authority, left behind. Subsequently he made the same journey, but with variations from the route of the regiment.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The petitioner is a corporation existing under the laws of the State of New Jersey, and is a citizen of that State. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein is the remarried widow of Edwin C. Lawson, who ivas enrolled August 24, 1861, at Carlinville, Ill., and mustered into service as a private in Company C, Thirty-second Regiment' “Illinois Infantry, to serve three years.

The Reporters' statement of the case: This case was tried during the December term, 1904-05, and dismissed without an opinion. Claimant moved for a new trial and bis motion was overruled. Claimant again moved for a .new trial January 2, 1906, which was allowed and a new trial had.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, Carl L. Mueller, ivas mustered into the service of the United States as a captain and assistant surgeon of the Second Regiment Ohio Volunteers on May 10, 1898,, and was mustered out with said regiment with the same rank on February 10, 1899. He served on detached service in the military hospitals in Cuba.

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The claimant, John Kelly, was the duly appointed and acting crier of the United States District and Circuit Courts for the district of Oregon during the period from February 6, 1899, to October 20, 1900, inclusive, and the claimants, Jacob Proebstel, James N. Fullilove, George Egbert, and H. Lampman, were bailiffs of said courts during said period, duly appointed and…

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant, John M. Hite, was appointed assistant engineer in the United States Navy, with the relative rank of ensign, for temporary service during the late war with Spain, on May 14, 1898; he reported for duty on board the U. S. S. Massachusetts, in obedience to orders of the Navy Department, on June 1, 1898, and served creditably as such officer on said ship until…

<p> On the defendants'1 Motion. </p> <p>This'is a«case referred by the Senate under the Tucker Act. The bill purports to be for a claim for the..use and occupation of real estate in the city of New Orleans by the military forces in May, 1862. It provides that the claim “be referred to the Court of Claims for adjudication under the provisions of section 1J¡ of the Tucker Act.”</p> <p>I. A bill setting forth the claim for the use and occupation of real estate in New Orleans and referring the claim to the Court of Claims for adjudication under the provisions of the Tucker Act, § 14, is equivalent to a bill' “for the payment of a claim against the United States, legal or equitable.”</p> <p>II. If from the language of the bill referred the court can determine that a claim exists against the United States, legal or equitable, which Congress desire the court to investigate to aid them in determining whether such claim should be paid, the court can take Jurisdiction though the bill does not in 'express terms provide for the payment of the claim.</p>

The Reporters' statement of the case: The following are the facts of the case as found by the court: I. On the 24th day of January, 1882, Edward G. Stoiber duly executed a power of attorney constituting Theodore H. Thomas his attorney in fact to make 'application to the United States through the proper land office.for the entry and purchase of certain Government lands, the same being coal lands, and particularly referring to the SE. ¿ of the NW. £, the NW. £ of the SE. £,…

The Reporters’ statement of the case: The case was decided in favor of the claimant March 20, 1905. Claimant thereupon moved. for a rehearing to increase the judgment by allowing two months’ extra pay provided for by the act of January 12,1899, which had not been asked for in the petition. Judgment was then entered for the increased amount, $658.33, for the reasons set forth in the former opinion of the court,' now published for the first time.

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, duly incorporated under the laws of the State of Oregon, and ever since October 10, 1896, it has owned a line of railroad from Astoria to Goble, in the State of Oregon, a distance of 61.18 miles, which was built by-it without aid from the United States by grant of lands or otherwise. II.

<p> On the Proofs. </p> <p>The Act 3d March, 1883, authorizes and directs the Postmaster-General to readjust the salaries of postmasters. The claimants allege that he did so, but that he has refused to report the readjustments to the Auditor for the Post-Office Department, and has refused to furnish information to the claimants, and has forbidden an examination of the records by claimants’ attorney, and has refused all information which would enable the claimants to prosecute the cases. The claimants endeavor to supply proof by the testimony of a witness who has examined the records and made extracts of parts. They also rely upon the returns showing what amounts should have been allowed in the readjustments and upon a report of the Postmaster-General to Congress stating that the “review of salaries of postmasters and .ex-postmasters of the third, fourth, and fifth classes under the act of March S, 1883, * * * has been completed, as the act of Congress aiiproved August J¡, 1886,-limited the presentation of claims to January 1, 1887, and applications filed to January 1, 1887, have Veen reviewed,” and that “ the review of salaries of postmasters and ex-postmasters of the third, fourth, and fifth classes muter the act of March 3, 1883, has been completed."</p> <p>I.A postmaster can not recover for a readjustment of salary under the Act nth June, 1866 (14 Stat. L., p. 59, § 8), and the Act 3d March, 1883 (22 Stat. I/., p. 486), unless there has actually been a readjustment by the Postmaster-General. Readjustment in such cases is essential to recovery, and the vital thing to be considered is the fact of readjustment.</p> <p>II.An executive act, like the readjustment of a postmaster’s salary by the Postmaster-General, can not be established, by parol or by secondary evidence where the records of the Department exist. Neither can it be inferred from facts and circumstances and printed records of the Departments that the Postmaster-General did at some unknown time readjust the salary. The readjustment, if it exist, must be produced; and if it does not exist its terms must be shown by secondary evidence, so that the court will know precisely what the Postmaster-General did and the time of his doing it.</p> <p>III.A report by the Postmaster-General to Congress stating in general terms that claims filed before a certain day “ have been reviewed” and that the review “ has been completed” is insufficient to establish the readjustment of any single postmaster’s salary.</p> <p>IY. The defense of the statute of limitations is ever present In actions ■ ' against the United States, whether pleaded or not. The statute is so far jurisdictional that it must affirmatively appear in eases of general jurisdiction that the petition was filed within six years after the claim accrued, unless it affirmatively appear that the case is one of those expressly excepted by the statute.</p> <p>Y. When a number of claimants have separate and distinct causes of-action, but their rights depend upon the same general question of law, they, for the convenience of both parties, may' be included in a single petition; and where they are so united and the defendants do not plead a misjoinder of parties, the court will assume that the joinder is for the mutual convenience of both parties, but the litigation must end in several and distinct judgments, and no right of appeal will exist in favor of the claimants collectively.</p>

<p> On the defendants’ Motion. </p> <p>The patentees of the Milligan press enter into a written’ contract with the Bureau of Engraving and Printing for the license to use ^ their inventions, after which they assign both patent and contract to the claimant. The claimant brings this action to recover under the contract. Subsequently it files an amended petition, which adds the names of the assignors as parties "for the use and benefit of the company,” the claimant. The defendants move to strike the amended petition from the files on the ground that the claim of the assignors is barred by the statute of limitations, and that the amended petition is superfluous and tends to confuse the record.</p> <p>1.Actions may be brought in this court by assignees of a chose in action in the name of their assignors to the use of the assignees.</p> <p>II.The transfer of a Government contract may (at the option of the Government) work an annulment of the contract under Revised Statutes, § 3737.</p> <p>III. An amendment to a pleading under Revised Statutes, § 954, is a matter of discretion; which ought to be exercised with great liberality in furtherance of justice, but not where it will prejudice a substantial right of the other party or where the amendment seems superfluous. ■'</p> <p>IV, An action by the transferee of a Government contract ought not to fail merely because the assignor does not appear as nominal plaintiff suing for the use and benefit of the transferee.</p>

The Reporters’ statement of the case: The following are the facts of the case as found by the court: i. The claimant, after having been recommended for appointment as midshipman from the Eleventh Congressional District of New York, subscribed the following oath and agreement: “ UNITED States Naval Academy. “ I, Emery Clayton Weller, of the State of New York? aged 18^% years, having been appointed a midshipman, do hereby engage, with the consent of my parent (or guardian),…

The Reporters’ statement of the case: The folloAving are the facts of the case as found by the court: I. The claimant herein, after having served sixteen years in the War Department, ivas, on September 9, 1898, appointed a major and additional paymaster of volunteers, and served in that capacity until May 7, 1901, when he ivas appointed paymaster in the United States Army with the rank of captain, and since that date has served in that capacity. II.

The Reporters’’ statement of the case: The following are the facts of the case as found by the court: I. The claimant is executor of the estate of Robert B. Wallace, deceased, on account of whose services this claim is made. II. Robert B. Wallace entered the Army as a cadet July 1, 1886, and on May 5, 1898, he was a'first lieutenant of cavalry.

The Reporters’ stateDient of the case: The following are the facts of the case as found by the court: T. The claimant is a citizen of the United States and the inspector of electric-light plants under the jurisdiction of the Treasury Department, and was such inspector and employee in the Treasury Department at all of the times hereinafter mentioned, receiving a salary of. $2,000 per annum, and during which time the services hereinafter mentioned were rendered the claimant…

The Reporters' statement of tbe case: The following are the facts of the case as found by the court: I. The claimant, John W. Nutt, presented this claim for difference of pay as regimental adjutant of the Fourteenth Regiment New York Volunteer Infantry, and also a claim for extra pay as adjutant of the same regiment under No. 23634, in which a favorable report has been made by the auditor of this court.

<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'1 statement of the case: The following are the facts of the case as found by the court: I. The claimant, Edwin M. Keatley, was clerk of the United States Circuit Court for the Southern District of West Virginia from July 1, 1901, to July 16, 1902, and was clerk of both the Circuit and District Courts for the said district from July 16, 1902, to September 17, 1904. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court : I. Plaintiff is, and has been continuously for a period long-preceding the dates hereinafter mentioned, a corporation created, organized, and doing business under the laws of the State of Missouri, engaged in the business of brewing, manufacturing, bottling, .and selling fermented liquors, both for domestic consumption and for export, having its brewery and principal place…

The Reporters'1 statement of the case: The following are the facts of the case as found by the court: I. The claimant, William G. Miller, entered the naval service as a naval cadet on October 1, 1881. From July 1, 1899, to March 2, 1900, inclusive, he was a lieutenant of more than fifteen years’ service in the Navy. II.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. The claimant herein, William N. Little, was serving as lieutenant-commander in the Navy on the U. S. S. Charleston at the time of her loss in the Philippine Islands November 2, 1899. II.

The Reporters' statement of the case: ' The facts of the case sufficiently appeal' in the opinion of the court: If section 2 of the act of July 31,1894, were the same, word for word, as section U63 of the Bevised Statutes, would that have justified a construction different from the one placed upon section 1763 by the Supreme Court? Certainly not.

<p>The Reporters’ statement of the case:</p>

The Reporters' statement of. the case: The following are the facts of the case as found by the court: I. The brig Sally, Eden Wadsworth, master, sailed on a commercial voyage on the 11th day of May, 1797, from Boston, bound for Hamburg, Germany. While peacefully pursuing said voyage she was seized on the high seas by the French privateer L’Iíydra (The Hydra), captain, Etienne Demoliere, and conducted into the Isle of He, France.

The Reporters' statement of the case: . The following are the facts of the case as found by the court: I. The claimant herein, Thomas B. Boyd, joined for service and was enrolled at general rendezvous as second lieutenant in Company A, Twenty-fifth Begiment Kentucky Volunteer Infantry, on the 15th day of October, 1861. He was duly appointed or commissioned to be an officer of the volunteer service during the war' of the rebellion h> take rank from October 15, 1861.

The Reporters' statement of the case: The facts of this case are sufficiently set forth in the opinion of the court. The doctrine of the common law required complete performance of all conditions precedent to the promise of the defendant to be alleged in the declaration and proved. This rule defeated an action bn the contract where part perform; anee-only could be claimed and is still rigorously enforced in our courts.

The Reporters’ statement of the case: The following are the facts of the case as found by the court: I. From January 1, 1905, to February 13, 1905, both inclusive, the claimant was employed in the Treasury Department at an annual salary of $1,800, and on February 14, 1905, he was appointed to a position in the same Department at an annual salary of $2,000. II.

The Reporters' statement of the case: The following are the facts of the case- as found by the court : I. The claimant entered the naval service as an assistant paymaster, with the rank of ensign, July 5, 1899. He was appointed an assistant paymaster with the rank of lieutenant, junior grade, July 1, 1902. He was promoted to paymaster with the rank of lieutenant March 3-, 1903, and was continuously in the naval service in that office and -rank until after September 30, 1903.

<p> On the claimants' Application. </p> <p>The suit is brought under an act authorizing the court to hear and render judgment against the United States in favor of “ the New York Indians, Toeing those Indians who were parties to the treaty of Buffalo Greek" January 15, 1838. Judgment is rendered under the mandate of the Supreme Court for $1,998,-744.46. Controversies then begin between the different tribes as to what tribes and what individual Indians are entitled to share in the distribution of the fund. This court assumes jurisdiction as a court of equity, and enters a decree directing what tribes, parts of tribes, and individual Indians shall be enrolled and paid (40 C. Cls. R., 448). Under an order of the court an installment of $100 is paid to each individual whose right to participate is undisputed. Subsequently a final decree is entered, May 7, 1906. From these decrees the above-named Indian nations and tribes now seek to appeal as nations, the amount in controversy between each and every individual Indian and the United States being much below the general statutory requirement of $3,000. The principal ground for the appeal is that the court has admitted to enroll-' ment and distribution the Oneidas of Canada, thereby reducing the amount which the other Indians would be entitled to per capita.</p> <p>I. Where a fund in court was derived from the sale of communal lands and belongs to the Indians of certain tribes, who are entitled to participate in it per capita, an appeal will not lie from a decree of distribution unless the amount in controversy between an individual and the United States is $3,000, as is required by the Revised Statutes, § 707, or unless a right of appeal is given by the jurisdictional act irrespective of'the limitation of the Revised Statutes.</p> <p>II. The jurisdictional Act 28th January, 1893 ( 27 Stat. L., p. 42C), authorized one suit to be brought which in legal effect should embrace and represent all individual claimants; and it authorized an appeal by either party; but it contains no .provision by virtue of which the Indian tribes as such can recover portions of the fund belonging to individual Indians, and no provision giving a right of appeal to any nation or tribe.</p> <p>III. -The language of the jurisdictional act that “ from any judgment rendereclmby the court either party may appeal,” must be construed in harmony with the general law regulating appeals.</p>

The Reporters’ statement of the case: The averments of the petition will be found fully stated in the opinion of the court.

The Reporters' statement of the case: These cases came to a hearing on the report of -the auditor of the court and the evidence upon which his report was founded. The report related to work done, during the war with Spain, upon- eight army transports, and set forth a great number of items. All the material facts of both cases are set forth in tho opinion of the court.

The Reporter's statement of the case: • The facts of the case, and the views of the court on other points now presented, will be found in the decision of the case, p. 214 ante.

The court below decided that the duties were legally exacted and dismissed the petition. The decision of the court below was reversed on the authority of Fourteen Diamond Rings (183 U. S. R., 176).