Volume 8 — Court of Claims Reports

The Reporters’ statement of the case: The claimant brought his action in the court below for a balance of rent, and set up the following private act: Whereas Alexander Cross heretofore filed his petition in the Court of Claims of the United States, praying relief on account , of certain rents alleged to be due from the United States to Mm as assignee of one Daniel Saffarans, by virtue of a certain alleged contract of lease between the said Daniel Saffarans (who is now…

The petitioner, a brigadier-general of volunteers, claims commutation pay under the third section of the Act March 3,1865, (13 Stat.

<p> On the Appeals of both parties. </p> <p>On the 19th Mardh, 1864, to meet a military emergency, the director and general manager of military railroads orders the claimant to construct, “ at the earliest practicable period,” fifteen locomotive-engines of a specified description, “ to the exclusion of all other interests or contracts,” the claimant to be “ indemnified from any damage resulting from a compliance with this order.” At the time this order is given the claimant has eighty engines in process of construction. The worh upon the whole eighty is delayed about two months by the Government engines. During the period of delay the prices of material and labor steadily advance, so that the cost of each engine is increased !j>1,250. The claimant insists that he is entitled to recover this increase on the whole eighty. The Court of Claims decides that he is not, but only on a number equal to the number constructed for the Government, via, fifteen. The claimant also seeks to recover an increased price for the engines sold to the Government; but this not being set -up in his petition, the Court of Claims decides that where the petition fails to allege money due, and makes no demamd for damages, no recovery can be allowed, even though proofs have been taken and the case has gone to trial. Judgment for the claimant. Both parties appeal.</p> <p>In suits brought against the Government in the Court-of Claims, the allegations and proofs must so far correspond that the latter shall not introduce a demand which is not set up in the petition. This is necessary so as to give the Government the "benefit of the principle of res judicata.</p> <p>II. Where an officer of the Government charged with the operation of military railroads during the rebellion, to meet a military exigency, orders,, •with the approval of the Secretary of War, a manufacturer to construct, fifteen engines “ to the exelusion of all other intei-ests or contracts,” the manufacturer to be “indemnified from any damage resulting from a compliance with this order,” the indemnity clause is valid, and the manufacturer should recover his specific losses, and also damages for the increased prices paid by him for labor and material during the period of delay on engines building for third persons.</p> <p>III. Where, under an indemnity from the Government, a manufacturer contracts fifteen railway engines to the delay of eighty engines which he is then building for third persons; and during the period of delay the cost of engines rises, say $1,250 an engine, he should not recover that amount on all in process of manufacture, but only on a number equal to the number he constructs for the Government, viz, the fifteen.</p>

The Reporters’ statement of tbe case: Tbe charter-party made the 1st March, 1865, between tbe owners of tbe steamer Tappahannock on tbe one side, and an officer of tbe Quartermaster Department on the other, provided : “ That the said vessel now is, and shall be, kept and maintained during the whole of the voyage mentioned in this contract, tight, staunch, strong, and well and sufficiently manned, victualed, tackled, appareled, and ballasted, and furnished in every respect…

The Reporters’ statement of the case: The Court of Claims found as facts in the case that the parties had executed a charter-party which… Held: that the United ' States, under such a charter-party, became the equitable owner of the vessel to the extent of the sum earned over and above the expenses and profits stipulated for; and that to the extent of such sum the owners had received so much payment on the price of the vessel; and that whether she was taken by the United…

The Reporter’s statement of tbe case: In this case the court below found the facts to be as follows: 1st. On the 19 th of November, 1862, the petitioner chartered to the defendants the steamboat Mattano, by a contract in writing.

The Reporters1 statement of tbe case: Tbe charter-party was substantially the same as iu Morgan’s Gase, (ante.) As to the orders of the quartermaster and the damage suffered, tbe Court of Claims found tbe following facts: That, ou the20tb of January, I860, tbe said vessel was in tbe service of tbe United States under said charter-party, was tight, staunch, strong, and well and sufficiently manned, victualed,, tackled, appareled, and ballasted, and furnished in every respect…

The Reporters’ statement of tbe case: The case was argued at great length by the counsel for the appellant upon the question whether the contract hereafter set forth contained the elements of a… Held: in Anderson’s Case, under the captured and abandoned property act, that the United States, as to loyal persons and friendly neutrals, hold the proceeds of the property in the light of trustees.

The Reporters’ statement of the case: The following are the material facts found by the court below : 1. On the 1st day of November, 1801, the claimants, Streét & Allen, sold and delivered to Major L. 0.

The Reporters’ statement of the case: The material part of the contract which was the foundation of the action; of the new order of inspection, which constituted the breach, and of the facts found by the court below in relation to the course pursued by the parties, are given below. The contract provided: First.

The Reporters' statement of the case: The following are the facts found by the court below: 1st. The claimant, Thomas W. Kelly, enlisted in the United States Army as a private soldier February 12,1864, at Detroit, Michigan, to serve three years, and was assigned to Company D, Nineteenth United States Infantry.

<p> On the claimants Appeal. </p> <p> The Amended Rule XXI directs the manner in which a brief shall he made up. The appellant in preparing his brief totally 'disregards the rule. The case is submitted on the merits. </p> <p>Where an1 appellant, in preparing his brief, wholly disregards the direction given by Amended Rule XXI, the court will dismiss the appeal on its own motion, though submitted by the parties on the merits.</p>

<p> On the defendants' Appeal. </p> <p> One E. leases a block of wa/i-ehouses in San Francisco to the Government. The Government subsequently sub-lets to A., who, by the terms of the sub-lease, is entitled to a re-appraisement of the rent. The Govei-nment nextassigns all its interest in the sub-lease, with all moneys due, or to become due, to E., who afterward evicts A. for non-payment of the rent. A. then brings his action against the Government for non-performance under the covenants of its lease to him. He also sues on a separate cause of action for storage furnished, tyo. TheGov-ernment denies any liability under its lease; and, on the contrary, claims a balmce of rent due from A., which it sets up as a set-off against Ms second cause of action. The Court of Claims decides against A. on his first demand, and against the Government as to its set-off, and renders judgment for the elaimamt on Ids second cause of action. The defendants appeal. The claimant neglects to appeal, but seeks a reversal upon the argument. </p> <p>I. Where a party neglects to appeal he is to he deemed content with the judgment. He cannot seek, when arguing his adversary’s appeal, a reversal as to a part of the judgment which was adverse to himself.</p> <p>II. When the Government has assigned a lease with all the rent accrued, it cannot afterward set up the rent due as a set-off in a suit brought on a 'distinct cause of action by the tenant.</p>

The Reporters’ statement of tbe case: The claimants moved for a new trial in this case, which motion the defendants sought to have continued. The claimants did not object to the postponement, but feared that if the motion should be denied they would then have lost their right of appeal.

The Reporters’ statement of the case: The facts appear in the following findings of the court below: I. The defendants, on the 7th January, 1862, through their Chief of Ordnance, General James W. Ripley, and by the express direction of the Secretary of-War, made in writing this offer to the claimant, to wit: “I offer you an order for fifty thousand (50,000) muskets, with appendages, of the Springfield pattern, on the following terms and conditions, viz: These arms are to be…

The Reporters' statement of the case: The facts found by the court below are substantially stated in the opinion now delivered.

The Reporters’ statement of tbe case: The claimant brought suit to recover the proceeds of certain cotton captured in Mississippi, and in her petition alleged that the cotton was raised on her… Held: as its conclusion of law, as follows: From these facts we think there cannot be deduced those elements of a sale and delivery which constitute the ownership of personal property.

The Reporters’ statement of the'ease: The claimant first brought suit for¡the services of his vessel under an agreement made with a naval engineer, but ratified by one of the military quartermasters in charge of transportation. (See 4 O. 01s. It., p. 87.) Failing in' this he then brought the present suit for the proceeds of her sale under the Abandoned or captured property Aet.

The Reporters' statement of the case: In the court below the case turned upon the point whether the manufacture and sale of saltpeter to the Confederate government amid the circumstances stated'constituted aid and comfort to the rebellion. On the first hearing in the Supreme Court this was also the point chiefly discussed.

The Reporters’ statement of the ease: This case has singularly divided two courts. In tlie court below a re-argument was ordered on tlie principal question, whether a proclamation .of the Executive takes effect from the day of its date or the time of its promulgation-; and the court then stood equally divided, one judge being prevented, by illness from taking part in the decision.

<p> On Motion. </p> <p> Judgment is rendered against the claimant. During the vacation she files her application for an appeal and at the same time a separate notice that at the next sitting of the court she will move for a new trial, the appeal being talcen merely to save her rights, with a reguest that it he held, under advisement. During the vacation the Chief Justice, in ignorance of this request, allows the appeal. The claimant now moves, before the record has gone up, to vacate the allowance. </p> <p>Where an application for an appeal is filed by the appellant and allowed by ■ the Court of Claims, or by the Chief Justice in vacation, jurisdiction, is lost under the decision of the Supreme Court in Bussell’s Mandamus, (7 O. Cls. R., p. 268,) and the Court of Claims is without power to vacate the allowance, though still in possession of the record.*</p>

The Reporters' statement of the case: The following facts were found by the court: On the 5th day of December, 1861, a charter-party was executed between the petitioner and the United States, by which they chartered the steamer George Shattuck, then lying at the Eastern Avenue wharf iu Boston, in the State of Massachusetts, to proceed to Charlestown navy-yard and there take a cargo of Government stores and proceed to New York with the same, and from thence to Hampton Roads…

<p> On the Proofs. </p> <p>The first article in an army-transportation contract hinds the contractor to transport the goods with all practicable dispatch ; the ninth provides that if a train be stopped by Government officers the contractor shall be paid $5 a day per team, and directs that such orders be in writing, tinless the officer refuse to give them. A wagon train of the' contractor, destined for Salt Lake, arrives at Lori Halleck. It is ordered to stop ■on behalf of the contractor, and at Ms request, because of the poor condition of his teams. He also procures an order from the commanding officer, indorsed upon his way-bill, directing him to stop because of the condition of his teams and the lateness of the season. In the interview with the officers the contractor is not present, but his brother, who has traveled with the train, makes the request, and agrees to cei'iain conditions imposed, and as evidence of authority produces the "bill of lading in hispas--session.</p> <p>I. Parol evidence is inadmissible in three classes of cases : 1st. As to instruments which the law requires to he in writing. 2d. As to contracts which the parties have reduced to writing. 3d. As to writings, material to the issue, the existence of which is disputed. But a paper which is-merely the memorandum of some other fact is not exclusive. And where an army-transportation contract provides that certain orders shall be in writing, and such an order is produced, it does not exclude parol evidence • offered to show a different state of facts than the order recites.</p> <p>II. Where an army-transportation contract binds the contractor to transport the supplies with all practicable dispatch, and provides that if the trains. be stopped by officers of the Government he shall be paid for the delay, and a train is so ordered to stop, but the order is issued for the benefit . of the contractor, and at his request, the Government is not liable for ■ tbe delay. The stoppages for which it would be liable under the contract are such as are not caused by the contractor, and the clause allowing it to stop trains cannot be construed to relieve him from the responsibilities which he assumed.</p> <p>III. Where a brother of an army-trausportation contractor travels with a train, holds himself out as being in charge of it, enters into negotiations with army officers in regard to stopping it for the winter, and produces the bill of lading as evidence of his authority to act for the contractor, the facts are sufficient to imply an agency without direct proof of his-authority.</p>

<p> On the Proofs. </p> <p> A contract provides for the manufacture and erection of an engine asid certain specific machinery at a stipulated price. It also provides that a cooking a%)-paratus he fwrnished, for which the confrontin' shall he paid a reasonable price to he estimated and determined by a hoard of inspectors appointed by the chief quartermaster of the Cavalry Bureau. The contractor furnishes the specified machinery ; also the cooking apparatus ; also extra machinery not specified in the contract, hut ordered by the officers of the Quartermaster Department, while the worTe is in progress. A boa/rd of inspectors is appointed which approves cmd accepts the work, but fails to agree upon the value thereof. The contractor waits a reasonable time, but the chief quartermaster neglects to appoint a second hoard to assess the value, and the contractor then brings his action. </p> <p>I. Where a contract provides that the contractor shall he allowed and paid a reasonable price and compensation for his work, to he estimated and determined b'y a hoard of inspectors appointed by the Quartermaster Department, and the Department neglects to appoint such a hoard, the contractor is hound to wait only a reasonable time, and may then bring his action to recover for his work.</p> <p>II. A party cannot recover for extra work or better materials than those specified in his contract, if he had not the authority of the other party therefor. But in a suit against the Government such authority will be implied where the officers of the Quartermaster Department, charged with the supervision of the work, saw and knew of the extra work in time to object and stop it, but instead of doing so received and accepted the benefit of it for the Government. And where changes ordered by them necessarily imply an increased prico, the contractor may recover therefor.</p>

<p> On the Proofs. </p> <p>A second lieutenant in the Veteran Beserve Corps is ordered to report for duty in the Vreedmen’s Bureau. Se does so and is assigned to duty in April, 1866. On the 1st of January, 1868, he is mustered out and honorably discharged the service, but on the same day is agopointed an officer and retained in the service of the Bwean, under the Act 6th July, 1866. Se serves in this capacity, but ■ receives no alloiomice for commutation of fuel or quarters, and on muster-out is refused the 33\per cent, on his pay proper alloxoed by the Act 2d March, 1867.</p> <p>An officer mustered out of the military service, hut retained in the service of the Ereedmen’s Bureau under the Act 6th July, 1868, (15 Stat. L., p. 83, § 4,) is entitled to commutation for fuel and quarters, and to the allowance of 33^ per cent, on Ms pay proper given "by tiie Aoi 2cl March, 1867, (14 Stat. L., p. 422.) Ee-affirming tiie decision in Whittlesey’s Case, (5 C. Cls. E., p. 99.)</p>

<p> On the Proofs, </p> <p>The keeper of the western gate of the Capitol is in the civil service of the Government during apart of the fiscal year ending June 30, 1867, hut resigns before thepassage of the Joint Resolution 28th February, 1867. TCe seelcs, nevertheless, to recover the 20 per cent, additional compensation alloxoed by the resolution.</p> <p>The Joint Mesolution28thFebruary, 1867, (14Stat. L.,569,) which allows to certain persons in the civil service at Washington “ an additional compensation of 20 per centum on their salaries,” and ju’ovides that when they are “ only entitled to receive salary or pay for part of said year the said 20 per centum shall be computed on the amount suehpmon is so entitled to receive for services," is limited, according to the express terms of the enactment, “ topersons noio employed in the civil service.” Therefore, where a person resigned and left the civil service before the passage of the Joint Resolution, he is not entitled to 20 per centum on the salary previously paid him.</p>

The Reporters’ statement of the case : The following facts were found by the court : 1. The claimant was the diplomatic representative of the United States to the republic of Peru from August, 1847, to April, 1861. 2. He was entitled to a yearly salary of $4,500 during a part of this time, and to a salary of $9,000 during the remainder of bis term of service.

Mr. Charles E. Bike for the claimant: This claim is founded upon an agreement made io June, 1865, between one A. Girard (by bis agent, E. Kiernan) and Charles W. Holt, captain and assistant quartermaster United States Army.

The Reporters1 statement of tlie case: The following were the facts found by the court : That the petitioner was a surveyor of customs performing the duties of collector at Pittsburgh, in the State of Pennsylvania, from the 15th March, 1867, until the 20th of April, 1869, a period of two years and thirty-seven days. That for the same period he was a depositary of the public money of the United States, duly designated under the Act of 6th August, 1846. (9 Stat.

<p> On the Proofs. </p> <p>The Treasury concedes the right of a surveyor of customs to recover, as designated depositary ofpitblie moneys, his commissions on ordinary deposits to the extent of §1,500 tuiihin a maximum compensation of $5,000 per annum, but controverts Ms right to recover commissions upon “ transfer deposits.”</p> <p>A surveyor of customs acting as designated depositary of public moneys is not entitled to commissions upon “ transfer deposits,” i. e., upon moneys transferred to him by other departments of the Treasury as distinguished from moneys paid to him as the representative of the Treasury.</p>

<p> On the Proofs. </p> <p>A surveyor of customs at anon-enumerated port performing the duties of collector, and acting as designated depositary, brings his action for compensation refused by the Treasury. It appears that he is entitled to commissions on deposits for the fiscal years ending June 30, 1861, June 30, 1862, mid June 30, 1863, but his action is not commenced until the 6th of June, 1871, and the Government sets up the statute of limitations.</p> <p>I. The ruling of the court as to the compensation of collectors and surveyors of customs at non-enumerated ports in McLean’s Case (ante) re-affirmed.</p> <p>II. The fiscal year of the Treasury is established by the Act 26th August, 1842, (5 Stat. L., p. 536, § 1,) and relates to “ all matters of aceounts, receipts, and expenditures.”</p> <p>III. The Act 3d March, 1841, (5 Stat. L., p. 42, § 5,) requires every collector of customs and surveyor of ports to render quarterly, under oath, a report of all moneys received or collected for the fiscal year, and the Aet 11th February, 1846, (9 Stat. L., p. 3, § 2,) requires all reports to be rendered quarterly, at the end of each quarter of each fiscal year.</p> <p>IV. The compensation to which a surveyor of a non-enumerated port, acting as collector and designated depositary, is entitled to, is an annual compensation, and as it is derived from his official acts within each fiscal year, it becomes due at the end of each year. If not paid, a right of action then accrues, and the statute of limitations then begins to run. Act 3d March, 1863, (12 Stat. L., p. 765, § 10.) The same principle applies to that portion of his compensation which consists of commissions upon deposits.</p>

The Reporters’ statement of the case: The case is one of “ appropriation ” by the army during the rebellion. But special jurisdiction was conferred on the Court of Claims to hear it by the Joint Resolution 23d June, 1870. (16 Stat.

The judgment in the former case, being unreversed, is conclusive between the parties as to the ownership of the land, the occupancy by tbe United States to tbe date of the adjudged claim, and the liability for rents, because of the occupancy, until its surrender by the Government.. It is also prima facie evidence of the value of the use and occupation.

The Reporters’ statement of tbe case: The court found the following facts : I. During the year 1866, one Alexander Caldwell was a contractor with the Quartermaster Department for army transportation between Nebraska City and Fort Eeno, at an agreed compensation of $1.45 per 100 pounds per one hundred miles. The claimant was a sub-contractor of Caldwell, to perform his contract at an agreed compensation of $1.25 per 100 pounds per one hundred miles. II.

<p> On a commissioner's Report. </p> <p>A contractor having delivered, a large quantity of grain for the use of the army, has issued to Mm, T>y the Quartermaster Department, from time to time, the usual vouchers. These he sells to various parties, though issued to him under one contract. The parties severally present them for payment. A portion of the amount being withheld from eaeh, they bring one suit in the name of the assignor, the contractor. The case, being examined by the court, is referred to a commissioner to state an account showing the respective interests of the parties whose claims are united in the single suit brought by the assignor to their use, and to report the facts. (5 C. Gis. S,., pp. 23, 79.) The commissioner maltes his report. The defendants except specially to it, and request the court to find other facts.</p> <p>I. Where a case has "been referred to a special commissioner to state an account and to find the facts, and his report has been heard upon exceptions filed, and the facts found are deemed by the court to be established by the evidence and relative to the case, they will be returned to the Supreme Court if an appeal be taken as the finding of the court. As to facts prayed for by the parties not allowed by the court, they will be certified up with the reasons of the court for its refusal.</p> <p>II. It is inferable from the decisions of the Supreme Court in the Floyd Acceptance Cases, (7 C. Cls. R., p. 75,) and in Anderson’s Case, (Id., p. 121,) and from the Act June 25,1868, (15 Stat. L., 75, § 4,) that an assignment of claims or choses in action against the Government is not void under the Act to prevent frauds upon the Treasury, 26th February, 1853, (10 Stat. L., p. 170.) The purpose of the act must be restricted to matters before the Treasury and not to matters coming within the jurisdiction of courts. The former decisions of the court holding assignments void must be overruled. See the Floyd Acceptance Cases, (1 C. Cls., p. 270;) Ooté Case, (3 C. Cls., p. 64.)</p> <p>III. The sale of a quartermaster’s voucher by a contractor to a third person works a transfer of his claim against the Government, or of so much of it as may be represented by the voucher. But such vouchers are not in any sense negotiable paper, and the purchaser will take them subject to all the equities that may exist against the contractor. Nevertheless, they are evidences of indebtedness sufficient in themselves to support prima facie an action.</p> <p>IV. Where several vouchers are from time to time issued to a contractor under one contract, and the Government is guilty of default in not paying them, so that all are issued before any is paid, and they are assigned by the contractor to various parties, each holder may maintain an action upon the voucher which he owns. The rule which forbids .the splitting of demands is not altogether an original legal right of the defendant, but an equitable interposition of courts to prevent multiplicity of suits upon principles of public policy, and it is confined to cases where the demands are in one person.</p>

The petition was filed in 18C8 by an attorney in fact, who was denied all access to the records in the Treasury Department, to ascertain tbe number of bales seized and sold. He could then, from tbe bestligbthecouldgatberoutside,onlytraoe sixty-four bales into tbe custody and possession of tbe Government officers. He therefore alleged that as tbe number claimed.

The Reporters’ statement of the case: The court found the following facts : On the 3d of May, 1869, Bvt. Brig.

The Reporters’ statement of tlie case.: The court found the following facts: The claimant and one James A. Carnes were partners in the business of filan ting and raising cotton in the State of Mississippi during the years 1861 and 1862. The said Carnes has since died, and the claimant is his surviving partner.

The Reporters' statement of the case: Tbe court found, among others, tbe following facts: That tbe several persons named in tbe schedule hereto annexed and marked “A” were enlisted soldiers, mustered into the Second Eegiment Ohio Volunteer Cavalry in 1865, at Columbus, Ohio.

In this case we have another cotton operation, but somewhat different from the operations of the camp-followers and cotton-pickers who figured so largely in Southern Mississippi. The Treasury agent reports that the cotton, i. e., the forty bales belonging to claimant, was not regularly seized — it was temporarily detained in order to effect an arrangement with the colored men who had followed it to Memphis.

The Reporters’ statement of tbe case: Tbe court found tbe following facts : Early in May, 1862, General Frémont, commanding- tbe Mountain Department, moved with tbe forces under bis immediate command from New Greek, in tbe northern part of Western Virginia, southerly, to re-enforce tbe Union forces threatened by tbe confederate army under General “ Stonewall” Jackson.

<p> On the Proofs. </p> <p>A disloyal person in Georgia talses the oath prescribed by the Amnesty Proclamation, December 8,1863, on the 20th of Jmie, 1865, he not being within any of the exceptions named in the proclamation. Subsequently he Iceeps and observes the oath. Afterward, in 1867, he accepts,in writing, a special and conditional pardon tendered him by the President, but fails to comply with its conditions by talcing the oath required by it. Before the General Amnesty Proclamation, December 25,1868, he dies. Sis xoidoio, as executrix, brings suit for ' the proceeds of captured property which belonged to the deceased.</p> <p>Where a person, residing within the insurrectionary district took the oath prescribed by tho Amnesty Proclamation, December 8, 1863, he not being within any of the exceptions named in the proclamation, and subsequently kept the oath, his executrix may maintain an action for the proceeds of captured property belonging to him, although he accepted a special .pardon of the President and failed to comply with its conditions.</p>

On the 12tb May, 1855, a contract was entered into with the petitioners for the erection of certain buildings at the site of the fort on Dauphin Island, all the materials of which were to be furnished by them. Tbe consideration was $50,000. Payments were to be made from time to time in sums of $5,000. Fifteen per cent, to be retained to insure the completion of the work, and if this was not completed according to contract, the amount retained was to be forfeited.

The Reporters’ statement of tbe case. The court found the following facts : I. The defendants, the United States, did not interpose any defense upon the trial, but appeared by counsel, and conceded that they had held and occupied the premises, and that the rent alleged to be due in the petition remains due either to the claimant Jesse D. Bright, or to the claimants Eusebius Hutch-ings and Alfred Harris. II.

<p> On the Proofs. </p> <p>In a suit under the Abandoned or captured property Act a quartermaster’s accounts are produced to show the sale of the property and the receipt of the monea ; hut they do not shoio that he paid the money into the Treasury, nor that he expended it for the use of the Government.</p> <p>I. Where a quartermaster’s accounts show that he sold captured property and received the money for it, and show nothing more, they merely establish the fact that he received and debited himself with the money. If it does not appear that he has been credited for the money by the Treasury, it cannot be deemed to be constructively in the Treasury.</p> <p>II. The Supreme Court, in Orussell’s] Case, (7 C. Cls., 276,) affirms the doctrine of Alee Henry’s Case, (6 id., p. 389,) that where captured property is traced to a responsible officer whose duty it was to transmit it, and a fund is shown to he in the Treasury, which may have been derived in whole or in part from the property, a legal presumption arises which connects the two established facts, namely, the fact of capture, and the fact of a fund derived from captures. Beyond this the rule of legal presumption cannot be carried.</p> <p>III. In cases under the Abandoned or captured property Act, the existence of a fund in the Treasury, actually or constructively, is a jurisdictional fact forming the basis of the suit.</p>

The Reporters’ statement of the case. , The court found the following facts: The claimant, prior to her marriage, was the owner of the undivided half of a plantation in Mississippi. In November, 1857, she married.

The Reporters’ statement of the case: The court found, among other, the following facts: The contract was for route No. 1, and extended over a district bounded easterly by the east bank of the Missouri River; northerly by the forty-second degree of north latitude; westerly by the one hundred and fourteenth degree of west longitude; and southerly by the forty-fourth degree of north latitude, and included Fort Reno.

The Reporters' statement of the case: The Court found the following facts: That before August 9, 1864, to April 1,1867, the petitioner was a clerk in the custom-house in New York, and received and receipted for his full compensation as such. That on the 9th of August, 1864, he was appointed to be a deputy collector ad interim, “ without increase of his compensation as a clerk,” and served as sued deputy collector under .said appointment until September 8,1864.

<p> On Motion. </p> <p>A suitor in this court employs attorneys in 1854 and has interviews and correspondence with them in regard to his suit until 1866. At that time he is assured by letter that his suit is still pending. He then goes to Europe, and remains there till 1870. In 1871 he learns, for the first, that his suit was dismissed for non pros, before he went to Europe, and finds that his attorneys have disappeared. So immediately talces steps to have the default opened.</p> <p>Where a suitor in this court remains four years in Europe without inquiry as to the condition of his suit, and. after his return to this country rests more than one year before making inquiry, it is too late to ask that a judgment of nonpros, entered without his knowledge before he went to Europe shall be vacated. His subsequent diligence does not excuse his former laches.</p>

<p> On Motion. </p> <p>A suit is pending in this court under the Abandoned or captured property Act properly brought xoithin the txoo years after the suppression of the rebellion prescribed for the bringing of such suits by statute. After this period has expired a stranger comes in and aslcs for leave to file an intervening petition in order to establish his right to the same proceeds. The only ground for the application is that the 2>arty in the suit colluded with another to defraud the petitioner out of his right to the proceeds by a pretended purchase of the cotton before capture.</p> <p>Where one claiming to be the owner of cotton captured during the rebellion neglects to bring suit for its proceeds within the time prescribed by the Abandoned or captured property Act, he cannot come in afterward and file what he terms an intervening petition against one who properly brought his suit for the same proceeds within the prescribed time. It is only where a party has a standing- in court, by having brought his suit within the jurisdictional period, that he can attack the title of another who is prosecuting a claim for the same proceeds.</p>

The Reporters’ statement of the case: The court found the following facts: I. In 1858 the Postmaster-General entered into five written contracts with the claimant for the transportation of the mail between Iowa City and Fort Kearney. Between Iowa City and Des Moines the service was to be performed six times a week each way by four-horse coaches.

The Reporters' statement of tbe case: The court found the following facts: The claimant at the time of the occurrence of the matters hereinafter stated was, and still is, a subject of the King of Prussia, and was the owner of the ship Essex; and prosecutes this suit under the authority of a joint resolution passed by Congress on the áth of May, 1870, entitled “ Joint resolution to enable the Court of Claims to hear and determine the claim of 23.

The Reporters’ statement of the case. The court found the following- facts: I. In November, 1864, the claimant was the owner of 536 tons of hay at Point of Books, near Fort Fillmore and Fort Lyon, in the Territory of Colorado. On the 27th November, 1864, he applied to Lieut. Clark Dunn, the commanding officer at Fort Fillmore, to purchase the same for the use of the defendants.

The Reporters' statement of the ease : The court found the'following- facts: That the petitioner is, and has been since August 16, 1867, a brevet major-general in the Army of the United States, and was, by Special Order No. 439, on September 10,1867, retired with full rank of major-general. Under the Act 28th July, 1866, (14 Stat.

<p> On the Proofs. </p> <p>Hardware-merchants in Savannah during the rebellion invest the capital of the firm in cotton. In August, 1863, they divide among themselves the cotton on hand according to their several interests in the capital of the firm, and credit in their boohs each member of the firm toith the number of bales which, at a price specified, would equal his individual interests in the partnership. No change is made in the possession of the cotton, nor specification of particular bales, nor separation from the mass. Seventy-nine bales also are purchased with money held by one of the partners as agent of the children of a deceased partner, but they are purchased in the name of the firm, and received and held in the mass of their cotton. Subsequently, and while in mass, the cotton is captured.</p> <p>I. Where cotton purchased during the rehellion hy a firm of hardware-merchants is credited in their hooks to each member of the firm, in proportion to his share of the capital, hut no change is made in the possession, and there is no separation or specific appropriation to the various members, the effect of the transaction is simply to declare the separate interests of the firm in property belonging to the firm, and not to change the property from copartnership to individual.</p> <p>II. Whore a firm buys cotton with money held by a member as agent of the children of a deceased partner, and the cotton is purchased in the name of the firm and mingled with the mass of their own cotton, it will be hold, in a suit under the Abandoned or captured property Act, that the firm was the owner, and the cotton purchased with money loaned to it.</p>

<p> On the Proofs. </p> <p>A British subject- residing in Neiv Orleans procures from a Treasury agent in May or June, 1864,permits to purchase eotton in Mississippi. Soon after he passes within the Confederate lines and confirms apurchase of cotton therq previously negotiated by his agent. The cotton, owing to the unsettled condition of the country, cannot be brought to New Orleans until February, 1865. On its arrival there the Treasury agents, under the form of sale and resale prescribed by the Ti’easnry regulations, under the Act July 2d, 1864, (13 Siat. L., 375, § 11,) exacts from the purchaser one-fourth of its value. For this henow brings' suit.</p> <p>Where a British subject residing in New Orleans procures from the Treasury agent there a permit to buy cotton, and iii May or June, 1864, passes ■within the Confederate lines and confirms a purchase of cotton previously made by his agent, the transaction is illegal and void under the decision of the Supreme Court in Lane’s Case, (7 C. Cls. K., p. 97,) and no title is acquired to the cotton, nor can he maintain a suit to recover one-fourth of the value exacted, from him by the Treasury agent in New Orleans upon its arrival there in February, 1865, as prescribed by Treasury regu- ■ lations under the Jet 2d July, 1864. (13 Stat. L., p. 375, § 11.j</p>

Mr. Green was domiciled ia this country, having his actual residence here, and carrying on large business operations. _ His visit to England and return to Savannah -during the rebellion appears to have been wtihout any design of surrendering his residence in this country, but was temporary in its character, and he actually returned and resumed his residence and business operations during the war.

The Reporters’ statement of the case: The court found the following facts: That in pursuance of the authority vested in him by law, the President of the United States, on the 28th of February, 1862, issued the following executive order: “ Considering that the existing circumstances of the country allow a partial restoration of commercial intercourse between the inhabitants of those parts of the United States heretofore declared to be in insurrection, and the citizens of the…

The Reporters’ statement of tlie case: This case was argued at great length by the counsel for the parties, and facts were found specifically by the court; but the arguments Mate chiefly to the facts of the ease, and the finding of facts is stated substantially in the opinion of the court.

<p> On the Proofs. </p> <p> The claimant brings Ms suit for the proceeds of captured property in the Treasury. A return is made by the Treasury showing the expenses charged against the property and the balance of the net proceeds. Among the charges is one for custom-house fees, and another for internal-revenue tax. The claimant excepts to them as improperly made. </p> <p>I. It was the intention of the Abandoned or captured property Act, that the proceeds of the sales of captured or abandoned property should be first . paid in gross into the Treasury, accompanied by a bill of charges, there to be audited and the lawful expenses allowed. But the interests of the Treasury compelled the regulation which allowed supervising special agents to pay out of funds derived from the sale of property all expenses necessarily incurred in collecting, receiving, securing, and disposing of the same. This regulation is legalized by the Act in addition, ‡0., July 2d, 1864.</p> <p>II. Where illegal expenses have been improperly allowed in the collection of captured or abandoned property so that the proceeds to that amount have never reached the Treasury, the owner is without redress ; for the Government is not responsible for-the illegal acts of its agents. But where the proceeds have reached the Treasury, and a portion is withheld to meet an illegal charge, the owner has rodress, and the amount withheld will be included in the judgment.</p> <p>III. A charge upon abandoned or captured property by the Treasury of a custom-house fee of four cents per pound, or an internal revenue tax of two cents per pound, is illegal, and will nob he allowed by the court as a charge upon the fund.</p>

The Treasury return shows that the twenty.-two bales of cotton, reduced to twenty-one bales by repacking, sold for $2,700. This amount is reduced to the sum of $1,857.47 by the most extraordinary bill of charges it has been my privilege to examine. First the Silver Moon received $313.77 for carrying the twenty-one bales from Memphis to Cincinnati, being $14.94 per bale.

<p> On the Proofs. </p> <p> During the rebellion the legislature of Georgia jpasses an act to incorporate the Some Insurance Company, with power to insure against losses by fire and the hazards of ocean or inland navigation, and upon lives. The act does not contain any provisions of such a nature as might operate in aid of the rebellion. At the time of the capture of Savannah the company owns two hundred bales of upland cotton, which isseized by the military. The only question on the trial is as to the right of a corporation, created by an act passed while the State was¡ in rebellion, to sue in this court for the proceeds of captured property, andi lohether it has a legal existence. </p> <p>Whatever act of the legislature of a rebel State did not tend to further or-support the rebellion, or to defeat the just rights of loyal citizens, but related to the domestic affairs of the community aside from the connection of that people with the rebellion, is a valid act, by a de facto■ though unlawful government, which will be sustained by the courts of the United States.</p>

<p> On the Proofs. </p> <p>The owners of capim-ed, property recover judgment in this courtunder the Abandoned or captured property Act. They file a transcript with the Secretary of the Treasury for payment. The Secretary .refuses to pay any part of the judgment unless the attorney of the owners consents to a written stipulation that a deduction for the internatoevenue tax on cotton he made, subjeet to the future decision of the Supreme Court as to its validity. The attorney for the owners signs the stipulation, and the balance, after deducting the tax, is paid. They now bring their action of debt against the Government to recover the amount ivitliheld.</p> <p>Eor tlie purposes of an appeal it is held that the Secretary of the Treasury has no right to deduct from a judgment of this court, rendered for the proceeds of captured cotton, the internal-revenue tax of two cents per ponnd on cotton, and that an action will lie against the Government for moneys so withheld.</p>

The Reporters' statement of tbe case: The court found the following facts: I. The claimant was a resident of Savannah during the rebellion, and owned, in bis own rigbt, one hundred and ninety-six bales of cotton, which were captured by the army in December, 1864. They were sold by the agents of the Government, and the proceeds paid into the Treasury of the United States, being $175.33 per bale, amounting in the aggregate to $34,364.68. II.

<p> On the Proofs. </p> <p>Sirty-fvee hales of cotton capturen from the claimant are traced to an employe of a Treasury agent. A portion thereof appears to have come to the possession of the agent and, the proceeds to he in the Treasury. The remainder is not traced to the Treasury agent, nor to any officer or agent of the Government. There is a fund in the Treasury derived from cotton captured at the sane place, and about the same time. It is insisted by counsel that a presumption arises that the claimant’s cotton contributed to that fund. The case is remanded for further evidence as to the missing cotton, but is resubmitted by counsel.</p> <p>Where captured cotton is traced to the employé of a Treasury agent, hut is not traced to the agent nor to any officer of the Government, no presumption arises that it was transmitted to the Government, nor that the proceeds thereof are in the Treasury. The presumption which ordinarily arises where the property is traced to an officer of -the Government does not extend to a mere contractor or employé of an officer, and the burden remains upon the claimant to show that the property came into the possession of the Government.</p>

<p> On the Proofs. </p> <p>In April, 1864, six hundred bales of cotton belonging to the claimant are captured and sent to Little Lock to be used on the fortifications. Only one hundred and eighty-two bales arrive there. These are mingled with cotton of other parties and the mass is placed in the fortifications. Two hundred and seventy-three bales go into the fortifications, but only two hundred and forty-eight come out.</p> <p>Where captured cotton, belonging to A. is mingled with the cotton of other ' persons, and the mass is used for fortifications, and only a portion thereof recovered subsequently, the proceeds derived from this portion will be a fund to answer to the several owners in the proportion to which they contributed to the mass.</p>

The Reporters’ statement of the case: The court found the following facts: I. The claimant, Isaac Scott, with his partners of the firm of George Parsons & Co., and one Edward Padelford, was the joint owner of two hundred and six bales of cotton captured at Savannah in December, 1864. The claimant’s interest therein was one undivided fourth part. The rights of the parties have been severed, and the other parties have recovered for their respective interests.

The Reporters’ statement of the case: The court found the following facts: The claimant applied to the supervising special agent of the Treasury, in New Orleans, for permission to bring in two hundred and fifty bales of cotton owned by him, then in Saint Landry Parish, on the west bank of the Mississippi. The agent issued a permit to that effect on or about the 16th of September, 1864.

<p> On the Proofs. </p> <p>fíotíonis captured near Beaufort, S. C., in 1861. It is shipped to New Yorlc, received and sold by the collector of that port. The proceeds are paid into the Treasury during the years 1861 and 1863.</p> <p>A suit may loe maintained for the proceeds in the Treasury of property captured in 1861, although the proceeds reached the Treasury before the passage of the Abandoned or captured properly Act.</p>

The Reporter s’ statement of the ease: The court found the following facts: The facts on which this claim is predicated are found to be: On the 15th of January, 1863, the claimant purchased the cotton in question in Bartow County, Georgia.

The Reporters’ statement of the case: The court found the following facts : The claimant is a subject of the Queen of Great Britain and Ireland, and during, the entire period of the war of the rebellion he was, and since has been, a resident of the city of Liverpool, England.

The Reporters' statement of tbe case: The court found tbe following facts: ‘ In tbe month of February, 1864, in Jefferson County, Mississippi, tbe claimant was tbe owner of one hundred and one bales of cotton, which were then and there seized by a military force of the United States, known as the marine brigade, commanded by General Ellett, who was accompanied by one Sher-rarcl Clemens, under authority from John A. McDowell, assistant special agent of the Treasury Department…

The Reporters’ statement of the case: Investigation by the court in the cases of Match and Odomr referred to in the opinion in this case, showed that there were shipped from Brownsville, in the summer of 1865, five hundred and fourteen hales and four hundred and eighty-nine sacks of cotton, being equal to five hundred and sixty-three bales; In New Orleans this was reduced in rebaling to five, hundred and twenty-three bales.

<p> On Demurrer. </p> <p>In July, 1872, nearly four years after the expiration of the period allowed for bringing suits by the Abandoned or captured property Act, the claimant brings this suit. It is to recover, not the proceeds which went into the Treasury, but the value of captured property at the time andplace of capture. It renounces any right of action under the Abandoned or captured property Act, and assigns as a reason, that the claimant was a rebel, and had no right to sue, until pardoned by the General amnesty proclamation, December 25, 1868. The defendants plead to the jurisdiction ; the claimant demurs to the plea, and insists that the Government is bound to pay for the value ofhisproperty umder an implied contract.</p> <p>Under tbe Abamdoned or captured property Act tbe Government is trustee primarily for those who were by tbe terms of the act declared entitled to the proceeds of their captured property; secondarily, for those whom the Government should thereafter recognize as entitled. A party can prosecute the Government in the Court of Claims for the proceeds of captured property only under that statute, and not on any implied contract, and the suit must be brought within the time prescribed by the act. A party is not relieved from this requirement by the fact of having been a rebel, and not having been pardoned until after the period for bringing such suits had expired.</p>

<p> On Plea to the Jurisdiction. </p> <p>The claimant brings his aetion as informer to recova• Ms share of a forfeiture for frauds perpetrated on the revenue by a mercantile house in New Orleans. The defendants plead to the jurisdiction.</p> <p>The Court of Claims has jurisdiction of an action brought by an informer to. recover his portion of a forfeiture under the revenue laws, allowed by the Act March 2,1807, (14 Stat. L., p. 546, § 1.) The case is not one to recover back moneys paid into the Treasury, within the meaning of Nicholl Co.’s Case, (7 C. Cls., p. 36,) but is a case of contract, founded upon statute, within the rule laid down in Patton’s Case, (Id., p. 362.)</p>

The claimant on the 17th day of September, 1863, was the owner of the steamboat known as the Robert Campbell, jr. This steamer was then lying at the port of Saint Louis, fully manned, equipped, and furnished. On the day named she was seized and impressed into the military service of the United States by the deputy quartermaster-general, General Robert Allen, through Captain Metcalf and Captain Parsons, assistant quartermasters.

<p> On Motion. </p> <p>A firm Neio Orleans brings suit under the Abandoned or captured property Act in due lime. After the time for bringing sueh suits has expired, one of the partnei's comes into cmrt and aslcs to file am, intervening petition, which appears to be an ordinary petition in sueh eases, setting forth that he is the owner of the captured property, with an averment that he has applied to the attorneys of the firm to recognize his rights, who refuse so to do. He also moves to have Ms own attorney entered on the records of the eotirt as attorney on his behalf in the suit of the firm. He does not allege fraud or mistalce.</p> <p>I. Where a suit is brought in the name of a firm, for the proceeds of captured property alleged to belong to the firm, an individual partner cannot come into court after several years of silence and allege that tlie property is his individually without showing fraud. The only cases where a substitution of one party for another is allowed is where no fresh cause of action is introduced; and the effect of the change is merely that one representative goes out and another taires his place.</p> <p>II. Where a suit has been brought in the name of a firm for property alleged to be the property of the firm, an individual paz-tner cannot subsequently come into court and ask to have his own attorney associated on the record with the attorneys of the firm.</p>

This is a claim for the percentage upon the claimant’s salary granted him by the resolution of Congress, No. 30, of February 28,1867.

The Reporters’ statement of the ease: This case being decided immediately before the adjournment of the court for the vacation, no opinion was read, but the court found tbe facts, so that the question involved might go to the Supreme Court for its decision. The legal conclusions arrived at were announced.

The Reporters’ statement of tlie case : The following is the material portion of the advertisement for proposals: “ Sealed proposals will be received at this arsenal up to 10 o’clock a. m. on the 25th day of May, 1869, for the construction of the piers and abutments of the railroad and wagon-road bridge to be built to connect the island of Bock Island with the city of Davenport. “ It is proposed to build, say, five common piers, one draw-pier, and two abutments. “ Detailed…

The petition claims that, during the existence of a pressing military exigency, Captain Insley, United States Army, made a verbal contract with Updegraff for the services of a two-horse transportation team, at the rate of $10 per day. The sum of $240 was paid, and this claim is for a balance of $220.80.

<p> On the Proofs. </p> <p>An army contract provides that, inhere stores have been transported, a •hoard of survey shall he called without delay at the point of destination, and its proceedings shall be attached to thehill of lading, and shall conclude the payments to he made on it. The contractor transports army supplies and receives a voucher which declares the 16th day of November, 18G5, to he the day when compensation becaine due to him. Under this voucher he is paid for the service, except as to a reduction made. On the 28ih of December, 1871, he brings his action for the amount deducted. The defendants set up the statute of limitations. There is no evidence of the service being completed later than the day named in the voucher.</p> <p>Where a quartermaster’s vouchor, put in evidence by the claimant, states a certain clay as the time when compensation became due for the service rendered, and there is no other evidence to show that the performance of the service was completed at a later clay, the statute of limitations will be hold to run from the day named.</p>

A claim for rent of Gilman’s ranch was presented to the Secretary of War for settlement in 1871, and although a demand for rent at the rate of $250 a month was made'by claimant, or by J. 0. Gilman, bis brother, rent was allowed at the rate of $100 per month in full of all claims against the United States connected with the occupation of the ranch, and accepted without protest by the claimant or brother.

This action -is brought to recover an additional bounty of $50, under the Act July 28, 1806, §§ 12 and 13.: “ SEC. 12.

The Reporters’ statement of the case: The court found the following facts: “Office Assistant Special Agent “Treasury Department, “ Camden, Arle., Nov. 10,18G5. “ This contract, made and entered into by and between A. B. Miller, assistant special agent Treasury Department, and W. H. Whiteside & Go., that said Whiteside & Co. agree to proceed to La Fayette County, Ark., (distance sixty-five miles,) and procure evidence sufficient to establish the right of the Government to…

By the Act March 3, 1849, (9 Stat. L., p. 412,) it was made lawful for Army officers exercising civil functions to retain from funds collected in Mexico a fair compensation for such services, but the plaintiffs testator had paid over all the funds so collected by him before the passage of this act, and could therefore derive no benefit from its provisions.

<p> On Motion. </p> <p>The owner of property captured in 1863 malees an assignment of his elaim in trust for his ■wife, being in part payment of his indebtedness to her for property acquired, after their marriage in Louisiana. After this he brings suit for the proceeds in his own name. Subsequently he becomes bankrupt, and an assignee is appointed. The assignee now comes in and asks to be substituted as party claimant. The claimant resists on the ground that his wife is the real party in interest, being the equitable owner of the proceeds.</p> <p>Where it appears on the face of the record that the claimant has a prima-facie right to sue for the proceeds of captured property, his assignee in bankruptcy must be substituted as party-claimant, and such application cannot be defeated by the claimant alleging that his wife is the real party in interest, being the equitable owner of the proceeds of the captured property.</p>

The Reporters’ statement of the case: The court found the following facts: In pursuance of the authority contained in the “ Act to authorize a national loan and for other purposes, approved July 17,1861, (12 Stat.