1. When the Court of Claims sends here as part of its finding
all the evidence on which a fact essential to the judgment there
rendered was found, from which it appears that there was no legal
evidence to establish such fact, this Court must, on appeal,
reverse the judgment.
2. At common law, a party to a suit is a competent witness to
prove the contents of a trunk or package, which, by other
testimony, is shown to have been lost or destroyed under
circumstances that render some one liable for the loss.
3. Sec. 1079 of the Revised Statutes was intended to do no more
than to restore in the Court of Claims the common law rule
excluding parties as witnesses, which had been abolished by the Act
of July 2, 1864, 13 Stat. 351, and hence the petitioner in this
case is a competent witness to prove the contents of a package of
government money taken from his official safe by robbers.
4. The petitioner being competent, neither his testimony before
the court-martial which convicted the robbers nor his report of the
loss to his superior officer is admissible as independent or
original evidence, though it might be proper as corroborative of
his own testimony.
5. The statute of limitation of suits in the Court of Claims,
Rev.Stat., sec. 1069, is not applicable to a suit under secs. 1059
1062, because such a suit is brought to establish, not a claim in
the just sense of that word, but a peculiar defense to a cause of
action of the United States against the petitioner, and so long as
the United States neglects to bring suit to establish that cause of
action, so long must he be allowed to set up any defense thereto
not in itself a separate demand.
6. The petitioner's right to sue in the Court of Claims did not
accrue until the accounting officers held him liable for the sum
lost, by refusing to credit his account therewith, and their final
action was within six years before this suit was brought.
This case was, on the appeal of the United States, before this
Court at the last term, and is reported in
94
U. S. 94 U.S. 73, where the finding of the Court of
Claims is stated.
The judgment below was then reversed, on account of an
insufficient finding, and the cause remanded for further
proceedings. Upon a subsequent trial, the Court of Claims made a
further finding, and rendered judgment for Clark. The United States
then brought the case here. As the additional finding is set forth
in the opinion of this Court, it is not necessary to insert it
here.
Page 96 U. S. 38
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from the Court of Claims, and very few cases
involving no larger sum of money have given us more trouble. It was
before us at the last term, and is reported.
94
U. S. 94 U.S. 73. Upon an examination of the record,
after the case had been submitted to us, it was discovered that on
an essential fact in issue the Court of Claims had made no finding,
but had sent us the evidence on that point. The judgment was
therefore reversed, on the ground that there was no sufficient
finding of the facts on which to render a judgment, and the cause
was remitted to that court for further proceedings.
The Court of Claims has now found with sufficient distinctness
the existence of the fact required, but it still sends to us, with
the record, the evidence on which it so found. It is this which
produces the embarrassment, as we shall presently see.
The suit is brought by Clark, under the Act of May 9, 1866, 14
Stat. 44, Rev.Stat., secs. 1059, 1062, which authorizes the Court
of Claims to hear and determine the claim of any disbursing officer
for relief from responsibility on account of capture or other loss
of funds while in the line of his duty, and for which such officer
was and is held responsible, and, in case the loss has been found
to be without fault or negligence on the part of such officer, to
make a decree setting forth the amount thereof, which shall be
allowed as a credit by the accounting officers of the treasury in
the settlement of his accounts.
The Court of Claims finds that the claimant lost by robbery,
while in the line of his duty as assistant paymaster in the army,
at Franklin, Texas, on the sixth day of April, 1865, a package of
government funds; that the package was in his official safe at his
quarters, and the loss was without fault or neglect on his part.
The fifth finding of the court, and the one which was made to
supply the defect found in the case when it was here before, is as
follows: "The package of government funds which the claimant lost
by robbery, as above stated, contained the sum of $15,979.87."
If this were all, there would be no difficulty in holding that
these findings sufficiently established all that is necessary to
support the decree in favor of the claimant for a credit of that
sum in his account with the government. But the Court of
Page 96 U. S. 39
Claims has mingled with, and made a part of its finding of
facts, and sent here as part of the record, the proceedings of a
court-martial which tried and convicted Thomas Boylan and Louis
Morales of committing the robbery by which the money was lost. It
sufficiently appears that the only evidence on which the Court of
Claims made its fifth finding -- namely the amount of the money
which was in the government package so lost, was the record of the
court-martial, and that claimant there testified to the amount of
the loss. Also that he was of good character, personally and
officially; had always kept regular and exact accounts of the funds
in his official custody; made due returns in regard to them, and
properly accounted therefor. And that he immediately reported to
his superior officer that the funds in that safe were $15,979.87,
which was the amount of the loss appearing in his official reports,
and charged against him as a deficiency on the final revision and
settlement of his accounts by the accounting officers of the
treasury.
It is clear that upon this testimony alone the Court of Claims
fixed the sum lost by claimant. We are asked by the counsel for the
government to hold that it is not competent evidence to establish
that fact.
It is manifest that, before we can do this, we must also hold
that where that court has found in due form, and presented to us
one of those ultimate facts which it is required to find, and which
is necessary to its judgment, and has at the same time presented as
part of its finding all the evidence on which that fact was found,
we can look at both findings to see whether that evidence was
competent proof of that fact. This is precisely what was done in
Moore v. United States, 91 U. S. 270.
Counsel for the United States insist that a party in the Court
of Claims has a right to bring before this Court for review any and
every ruling of the Court of Claims upon the admission or the
rejection of evidence, and also its weight and effect upon the
case. The question thus presented is one of much perplexity, and
involves the right to a bill of exceptions in a court which sits
without a jury, where the evidence is all in writing, and whose
judgments we have, by our rules, sought to make final as to all the
facts in the case.
We do not propose here to enter this field of inquiry
further
Page 96 U. S. 40
than this case requires. And we think it does require us not to
weigh the evidence, nor to decide whether the court below was bound
to note the exception prayed by counsel, or even to include in
their findings the matters of evidence we have above stated. But we
are of opinion that when that court has presented, as part of their
findings, what they show to be all the testimony on which they base
one of the essential, ultimate facts, which they have also found,
and on which their judgment rests, we must, if that testimony is
not competent evidence of that fact, reverse the judgment for that
reason. For here is, in the very findings of the court, made to
support its judgment, the evidence that in law that judgment is
wrong. And this not on the weight or balance of testimony, nor on
any partial view of whether a particular piece of testimony is
admissible, but whether, upon the whole of the testimony as
presented by the court itself, there is any evidence to support its
verdict -- that is, its finding of the ultimate fact in
question.
Entering upon the inquiry, whether there is here any evidence on
which the court could have found the amount of the loss by the
robbery, it seems too plain for argument that the record of the
court-martial is wholly incompetent.
1. Clark was no party to that proceeding, and is not, therefore,
bound by its findings; and, by a well known rule, there is no
mutuality, and therefore it cannot bind the United States.
2. The amount of the robbery was in no way an essential issue in
the trial of the robbers.
3. And it may well be doubted whether a criminal proceeding in a
military court can be used to establish any collateral fact in a
civil proceeding in another court.
Nor can the evidence of a witness in that case be competent to
establish a fact in another case, without some reason, such as his
death or insanity since it was given. We will recur to this point
presently.
Was the good character of the claimant, the regularity of his
accounts, and the prompt report of the loss and its amount,
competent evidence to establish that amount? The only thing in all
this which could have any tendency to prove the sum lost is the
report of its loss. This is but the testimony of the party
claimant, and testimony not under oath. If he is incompetent
Page 96 U. S. 41
as a witness, this less direct mode of testifying must also be
excluded. If he is competent and had been introduced on the stand,
this fact might be used as corroborative evidence. But while he is
alive and competent, it must be excluded as primary or independent
evidence, because there is better evidence in the sworn statement
of the party himself, produced on the stand and subject to cross
examination.
It is obvious, however, that the court or the counsel were
laboring under the conviction that claimant was not a competent
witness, and were struggling to find other evidence of a fact which
was known to him alone. In this we think they were mistaken, and
that for the purpose of proving the contents of the stolen package,
and for that purpose alone, he was competent.
We are of opinion that, by the rules of evidence derived from
the common law, as it is understood in the United States, whenever
it becomes important to ascertain the contents of a box, trunk, or
package which has been lost or destroyed, under circumstances that
make some one liable in a court of justice for the loss, and the
loss and the liability are established by other testimony, the
owner or party interested in the loss, though he may be a party to
the suit, is a competent witness to prove the contents so lost or
destroyed. I Greenl.Evid. �� 348 350, and notes.
This is one of those exceptions to the rigorous rule of the
common law excluding parties and persons having an interest in the
result of the suit from becoming witnesses in their own behalf,
which has been engrafted upon that system. It is founded in the
necessity of permitting the only party who knows the matter to be
proved to testify, in order to prevent an absolute failure of
justice, where his right to relief has been established by other
evidence. We are aware that there is a conflict of authority on
this point, but we believe the preponderance is in favor of the
proposition we have stated; and looking at it as a matter of
principle, in the light of the progress of legislation and judicial
decision, in the direction of more liberal rules of evidence, we
have no hesitation in adopting it, in the absence of legislation by
Congress on the subject.
But there is legislation by Congress, and it is doubtless to be
attributed to this that Mr. Clark was not called to prove the
contents of the lost package. Sec. 858 of the Revised Statutes,
Page 96 U. S. 42
originally enacted July 2, 1864, declares that
"in the courts of the United States no witness shall be excluded
in any action on account of color, or in any civil action because
he is a party to or interested in the issue tried."
This was a complete abolition of the rule of exclusion under the
common law in all the courts of the United States, and under it the
claimant would have been competent to prove not only the contents
of a lost package, but every other fact necessary to establish his
claim or title to the relief sought by the suit. Four years later,
however, Congress became dissatisfied with this departure from the
old rule of evidence as it applied to suits in the Court of Claims,
and by the Act of June 25, 1868, Rev.Stat., sec. 1079, intended to
restore it. It is there enacted that
"No claimant, nor any person from or through whom any such
claimant derives his title, claim, or right against the United
States, nor any person interested in any such title, claim, or
right, shall be a competent witness in the Court of Claims in
supporting the same; and no testimony given by such claimant or
person shall be used, except as provided in the next section."
The next section provides for the examination of such parties at
the instance of the government counsel.
It can hardly be supposed that Congress intended to do more in
this last statute than to restore the common law rule of exclusion
as it stood before the passage of the act of 1864. There is nothing
in the language of the act of 1868, nor in the purpose to be
subserved, which required more, and in this respect the later act
was limited to the Court of Claims, leaving the more progressive
rule of 1864 to its full operation in all other courts. The
peculiar form of expression of the act of 1868, so far from
militating against this view, rather tends to confirm it. The
parties are excluded from being witnesses in support of the title,
claim, or right asserted in the suit, and no testimony given by
them -- that is, no testimony given elsewhere on those points --
shall be used. But it is not inconsistent with this view, that, if
the title or right of the claimant to relief is established by
other evidence, he may be competent to prove, as under the common
law rule, the contents of the package in regard to which his right,
title, and claim to relief has already been established. We are of
opinion, therefore, that for this purpose the claimant
Page 96 U. S. 43
was a competent witness, and that his testimony was the best to
be had, since the court finds that he kept no clerk or assistant
who might know the necessary facts.
It follows that, since there was no competent evidence before
the Court of Claims, as shown by their own finding, of the contents
or amount of the lost package, their finding on that subject was
erroneous, and the case must be returned for a new trial. But as
all the other facts necessary to a judgment have been found and are
without error in the finding, the new trial or hearing will be
limited to the question of the contents of the lost package.
As the case has now been twice before us, and as counsel for the
United States has insisted on a plea of the statute of limitations,
we must dispose of that now.
"Every claim against the United States, cognizable in the Court
of Claims, shall be for ever barred, unless the petition is filed .
. . within six years after the claim first accrues."
Rev.Stat., sec. 1069. The petition of plaintiff in this suit
does not, in the just sense of the word, set forth a claim against
the United States. It sets up a defense to a claim of the United
States against the plaintiff. The Court of Claims finds that
plaintiff is now sued in another court by the United States for the
sum in controversy here.
The plaintiff asks, and by the very terms of the statute under
which the Court of Claims acts can obtain, no judgment for money
against the United States, nor fix any liability on the government
to pay him any thing. By a very curious provision, the Court of
Claims is authorized to establish for him a defense to a claim,
which claim the government can only establish judicially in some
other court. If that court could entertain jurisdiction of this
matter when offered as a defense, it is very clear that the statute
of limitations would be no bar to such defense there. Why should it
be here? We think it is a principle of general application, that so
long as a party who has a cause of action delays to enforce it in a
legal tribunal, so long will any legal defense to that action be
protected from the bar of the lapse of time, provided it is not a
cross-demand in the nature of an independent cause of action. But
if we are mistaken in this, it is clear that, until the accounting
officers of
Page 96 U. S. 44
the treasury had refused to recognize the sum lost as a valid
credit in the settlement of his accounts, there was no occasion to
apply to the Court of Claims, and the statute, if applicable to
this class of cases at all, did not begin to run until then. In the
language of the statute, the officer is not held responsible for
this amount until the accounting officers reject it as a credit,
and it is only when he has been or is so held that he is authorized
to sue in the Court of Claims to establish his defense.
Judgment reversed, and cause remanded for further
proceedings in accordance with this opinion.
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE CLIFFORD,
MR. JUSTICE SWAYNE, and MR. JUSTICE STRONG, dissenting.
I concur in the reversal of the judgment in this case, because
there was no competent evidence before the Court of Claims of the
amount of public moneys taken from Clark by this alleged robbery.
But I feel obliged to express my dissent from some of the
conclusions announced in the opinion of the majority of my
brethren.
The proviso to the third section of the Civil Appropriation Act
of July 2, 1864, declares, that
"in the courts of the United States there shall be no exclusion
of any witness on account of color, nor in civil actions because he
is a party to or interested in the issue tried."
13 Stat. 351. Prior to its passage, the courts of the United
States adhered with great strictness to the common law rule that a
party to the record cannot be a witness, either for himself or a
co-suitor in the cause.
Bridges v.
Armour, 5 How. 91;
Stein v.
Bowman, 13 Pet. 209.
Broad as was its language, that proviso was regarded as applying
only to the courts of the United States referred to in the
judiciary act. Congress, however, by sec. 3 of the general
appropriation act of March 2, 1867, 14 Stat. 451, directed that it
should "be construed to embrace all suits to which the United
States shall be a party in the Court of Claims, either as plaintiff
or defendant," thus rendering a party to an action in that court a
competent witness against the United States, without reference to
his interest in the issue.
Page 96 U. S. 45
That section remained in force but a short while; long enough,
however, as we may infer from a subsequent enactment, to convince
the legislative department that it was against public policy to
allow suitors in the Court of Claims to testify in their own behalf
against the government. Hence, by an act providing for appeals from
that court, and for other purposes, approved June 25, 1868, 15
id. 75, it was declared,
"That no plaintiff, claimant, or any person, from or through
whom any such plaintiff or claimant derives his alleged title,
claim, or right against the United States, or any person interested
in any such title, claim, or right, shall be a competent witness in
the Court of Claims in supporting any such title, claim, or right,
and no testimony given by such plaintiff, claimant, or person shall
be used,
provided that the United States shall, if they
see cause, have the right to examine such plaintiff, claimant, or
person as a witness, under the regulations and with the privileges
provided in sec. 8 of the Act of March 3, 1863, entitled 'An Act to
amend an act to establish a court for the investigation of claims
against the United States, approved Feb. 24, 1855.'"
The privilege here referred to was that accorded to the
government to require the claimant, upon the order of the court, to
submit to an examination, under oath or affirmation, as to any and
all matters pertaining to his claim, such examination not to become
evidence in the cause except at the discretion of the United
States. 12 Stat. 766.
The provisions of the Acts of July 2, 1864, and June 25, 1868,
so far as they relate to the competency of witnesses, were
reenacted in the Revised Statutes. Secs. 858, 1079, 1080.
An Act, approved May 9, 1866, 14 Stat. 44, confers jurisdiction
upon the Court of Claims
"to hear and determine the claim of any paymaster,
quartermaster, commissary of subsistence, or other disbursing
officer of the United States, . . . for relief from responsibility
on account of losses by capture or otherwise, while in the line of
his duty, of government funds, . . . and for which such officer was
and is held responsible,
provided that an appeal may be
taken to the Supreme Court, as in other cases."
Sec. 2 provides
"That whenever that court shall have ascertained the facts of
any loss to have been without fault or neglect
Page 96 U. S. 46
on the part of such officer, it shall make a decree setting
forth the amount thereof, upon which the proper accounting officers
of the Treasury shall allow to such officer the amount so decreed
as a credit in the settlement of his accounts."
Under the authority of this statute, Clark instituted this
action against the United States, asserting that, in the year 1865,
while in the line of his duty as paymaster, in the State of Texas,
he had, without fault or neglect on his part, been robbed of
government funds in the sum of $15,979.87, and praying that a
decree be rendered relieving him from responsibility therefor.
The fact of a loss, without the fault or neglect of Clark,
having been shown by other witnesses, this Court holds that he is a
competent witness, in his own behalf, to prove the extent of such
loss. He is thus allowed to establish, by his own testimony, one of
the essential facts upon which any decree in his favor must rest,
viz., the amount for which he should receive credit in the
settlement of his accounts.
In that view I cannot concur. I think it cannot be sustained
upon principle or authority. The will of Congress as to the
conditions upon which it allows the citizen to sue the government
has been expressed in plain and unambiguous language, which leaves
no room for construction. It is obviously our duty to execute the
statute without reference to our opinion as to its wisdom or
policy. If, under the circumstances of particular cases, it seems
harsh when construed according to its terms, the remedy is with
another department of the government, and not with the judiciary.
The act which furnishes the sole authority for the institution of
this action describes the demand of a disbursing officer to be
relieved from responsibility for government funds which have been
lost, as a "claim" which the Court of Claims may hear and
determine. Congress not only expressly provides that no plaintiff
or claimant in that court shall be a competent witness in
supporting any claim or right he may assert against the United
States; but, as if
ex industria to prevent all
misapprehension, and remove all possible doubt as to its intention,
declares that "no testimony given by such plaintiff, claimant, or
person shall be used." Nevertheless, this Court holds that Clark
may testify as to the extent of the credit he is entitled to
receive, and that his testimony
Page 96 U. S. 47
upon that point may be used against the United States. If at the
time of framing the act of June 25, 1868, the draughtsman intended
to employ such terms as should effectually and in every conceivable
contingency exclude the testimony of claimants when offered in
their own behalf in the Court of Claims, he could, in my opinion,
have used no more appropriate language. It is so simple and clear
that it would seem impossible for the utmost ingenuity to suggest a
mode of defeating what appears to have been the evident purpose of
Congress. A "claimant" or a "plaintiff" in the Court of Claims is
incompetent as a witness against the United States. Is not Clark a
"plaintiff," and does he not in this suit set up a claim or right?
If allowed to be a witness to prove the amount of his loss, will he
not give testimony in support of a "right" to be credited
therewith? Is not the act explicit and imperative that no
"plaintiff" shall be heard to support his claim or right in that
court by his own testimony, and that his testimony shall not be
used against the government? It seems to me that these questions
must be answered in the affirmative. Under what rule, then, can
Clark be a competent witness in his own behalf? How can his
testimony be received against the government without utterly
disregarding the plainly expressed will of that department, which
has the power to declare the conditions upon which the United
States may be sued by the citizen?
With entire respect for the opinion of my brethren, I submit
that the construction which the court places upon the Act of June
25, 1868, seems to fall very little short of judicial
legislation.
It is said that the utmost which can be claimed for the act is
that it prescribes the general common law rule, that a party cannot
testify in his own behalf, and that this case comes within one of
the recognized exceptions to that rule. In support of that
position, we are referred to secs. 348 350 of 1st Greenleaf's
Evidence. But neither they nor the authorities cited in the notes
prove what is claimed for them. That eminent text writer says
that
"the oath
in litem is admitted in two classes of cases:
first, when it has been already proved that he party against whom
it is offered has been guilty of some
fraud or other tortious
and unwarrantable act
Page 96 U. S. 48
of intermeddling with the complainant's goods, and no
other evidence can be had of the amount of damage; and secondly
where, on general grounds of policy, it is deemed essential to the
purposes of justice."
An example of the first class is the case cited in
East
India Company v. Evans, 1 Vern. 306, where a man ran away with
a casket of jewels. The injured party was allowed to testify
in
odium spoliatoris. Another case of the same class is
Herman v. Drinkwater, 1 Me. 27, where the plaintiff
shipped a trunk and two boxes on a brig then in the port of London
of which the defendant was master. The latter undertook to
transport them to New York. The plaintiff, desiring to accompany
them, engaged passage for himself in the same vessel, and sent on
board his clothes and other baggage necessary for his
accommodation. The defendant sailed without him, and on the voyage
to New York broke open the trunk and rifled it of its contents. The
plaintiff, in an action against the master, was held to be a
competent witness in his own behalf to prove the contents of the
trunk. It will not be pretended that the case now before us is
within the first class just stated. The United States was not
guilty of any fraud or tortious act whereby Clark lost the funds
entrusted to him.
Nor can this case, consistently with the authorities, be
embraced in the second class, familiar examples of which are
actions against innkeepers, stable keepers, and common carriers.
Such actions always proceed upon the theory that the defendant was
guilty of some fraud or negligence or breach of trust whereby the
plaintiff lost his property. Upon grounds of public policy the
latter was sometimes allowed, at common law, to prove by his own
oath certain facts essential to a recovery, no other evidence being
attainable. To this head may be referred, says Mr. Greenleaf, the
admission of the party robbed, as a witness for himself, in an
action against the hundred, upon the Statute of Winton. But that
action was authorized upon the ground that the hundred was guilty
of some wrong or negligence whereby the plaintiff had received the
injury complained of. Nothing of that kind can be predicated of the
government in a case like this. No element of wrong or fraud or
negligence on its part can exist in any action
Page 96 U. S. 49
instituted under the Act of May 9, 1866. Paymaster Clark was
entrusted with public funds for disbursement, and their loss was
not caused by the neglect of any other government officer. By the
law then in force, he was responsible for them, although they had
been feloniously taken from him.
United
States v. Prescott, 3 How. 578. Congress, in 1866,
influenced doubtless by the hardship of special cases, perhaps of
this particular case, enabled disbursing officers to obtain a
credit for government funds taken from them, without fault or
negligence on their part. A subsequent statute, however, declares
that no testimony given by a plaintiff in the Court of Claims
against the United States shall be used. Whatever exceptions to the
common law rule public policy or necessity has established, the
terms of the Act of June 25, 1868, exclude all possibility of
exceptions to the rule which it prescribes. In the Court of Claims,
no plaintiff can testify against the United States in support of
his claim or right. So reads the statute, and it is, I submit, the
duty of this Court to obey it, leaving to Congress to make such
changes in the rules of evidence as its views of public policy may
suggest. It may be unfortunate for Clark if he be denied an
opportunity to testify to the amount of his loss; but, as said by
Lord Campbell, "it is the duty of all courts of justice to take
care, for the general good of the community, that hard cases do not
make bad law."
East India Company v. Paul, 7 Moo.P.C.C.
111.
I dissent also from that portion of the opinion which overrules
the plea of limitation interposed by the government.
The Act of March 3, 1863, 12 Stat. 765, reenacted in Rev.Stat.,
sec. 1069, declares that
"Every claim against the United States cognizable by the Court
of Claims shall be for ever barred unless the petition setting
forth the statement of the claim be filed . . . within six years
after the claim first accrues."
Immediately upon the passage of the Act of May 9, 1866, Clark
had the right to proceed in that court, but he did not file his
petition until April 12, 1873.
"In general it may be said that it is a rule in courts of equity
as well as in courts of law that the cause of action or suit arises
when and as soon as the party has a right to apply to the proper
tribunals
Page 96 U. S. 50
for relief."
Angell, Lim. 37, c. 6, sec. 42; 2 Story, Eq.Jur.,
This Court holds that Clark's suit was not the assertion of a
"claim" within the meaning of the limitation clause of the act of
1863. From that construction I dissent.
Clark resorted to the Court of Claims under the authority of an
act which, as already suggested, entitles the demand for relief
under its provisions as a "claim," and in his affidavit to the
petition he speaks of his demand as a "claim," and of himself as a
"claimant." The Revised Statutes, following that act, designate
such a demand as a "claim," and give the Court of Claims
jurisdiction of "all claims founded upon any act of Congress." In
every just sense, this claim is so founded.
Clark, in order to obtain relief from responsibility for the
funds in question, was required to present to the proper accounting
officers a decree of the Court of Claims directing that he should
receive credit for the amount taken from him by the alleged
robbery. It was not, therefore, a misuse of words for Congress to
describe a demand for relief under the act of 1866 as a "claim." If
a "claim," it was clearly barred unless it did not accrue until the
credit which Clark had given himself in his report was rejected at
the treasury in 1871; but unquestionably his crediting himself with
the amount taken from him by the robbery was an unauthorized act.
The accounting officers could not, except in pursuance of a decree
of the Court of Claims, lawfully admit such a credit, and their
failure to promptly disallow it did not give him any additional
right nor deprive the government of any right which it possessed.
Neither his nor their action could suspend the running of the
statute of limitations. His claim therefore accrued immediately
upon the passage of the Act of May 9, 1866. Not having been
asserted by suit within six years from that date, it was
barred.
I am of opinion that the judgment should be reversed, with
directions to dismiss the petition.