18

PETITION NOT FILED IN SEASON.

ship, and prayed damages for the loss of their personal effects and their respective interests in the "catch," in addition to his own claim, but showed no previous authority or subsequent ratification from these officers or seamen, of the names even of some of whom he was ignorant, the court, on demurrer, dismissed his petition.1 G.'s petition was not received until after the six months had elapsed; but it appearing that it was posted at such a date that but for an accident to the postal service, it would have reached the court in due course of mail by January 16 (the time expiring January 22) the court ordered that the claim be filed nunc pro tunc as of the day when it would have reached the court in due course of mail; the court being satisfied, by the inspection of the papers, including the post-mark, that the petition failed to reach the office of the clerk merely through an accident.2

B., guardian of N., discovered on January 22, 1875, the last day allowed for filing petitions, that N. had owned one sixteenth part of a ship, and was entitled to file his claim for loss of the same. The largest owner had, in December previous, filed his individual claim, and in his petition had stated, among other things, N.'s ownership. B. telegraphed the facts in brief, to an attorney at Washington, authorizing him to file, that day, a petition in his (B.'s) name as guardian, which the attorney accordingly did. The attorney signed the petition " B. by his attorney," and annexed

his own affidavit in the following terms,

"I have reason to believe, and do believe, that the facts stated in the foregoing petition, so far as material, are true, except only the date of claimant's birth; that I am the attorney of said B; that, owing to his distance from the court, it has not been practicable to obtain his affidavit in season to file this day; but that an affidavit of claimant will be furnished, and will substantially corroborate what has been above set forth."

The petition was received, filed, and docketed, January 22, 1875 and kept its docket number.3

1 Osborne v. United States (No. 263) Rep. 14.

2 Geoghegan v. United States (No. 1330) Rep. 12.

8 Bartlett v. United States (No. 1382). See also the form of petition and affidavit in Patterson v. United States (No. 1381), - a claim filed on the same day under similar circumstances. It is not clear what weight would be given to these peculiar cases in the event of a failure, under the present act, to have a completely prepared

A point of practice early determined was the method of verifying a claim in the case of two or more claimants joining in one petition. Could their claims be verified by one only of the claimants named in the petition? It may be argued in favor of permitting one of several claimants to make the oath in behalf of himself and one or more others in any given case," says WELLS, Presiding Judge, in an opinion laying down the rule adopted by the court upon this point, "that the object of the verification by oath is merely to get such case before the court, so that proofs and adjudication may be had; that in fact the oath of the claimant does not in any case constitute absolute evidence; that the formality of the law in this requirement is in fact complied with by the affidavit of one, although the interests of several were involved." The decision of the court was that each claimant, when associated or joined with others in any given case, must verify his claim by his own oath.1

The language of the present act, that claims "shall be verified by or on behalf of the claimant," here assumes a new significance. It would seem to indicate the intention of Congress to permit one of several claimants, united in a petition, to verify the claim in behalf of his co-claimant, thus abrogating the rule above specified. Section seven of the act of 1874 is as follows:

SECTION 7. That the said court shall proceed immediately after its first meeting in the city of Washington, with all convenient dispatch, to arrange and docket the several claims admissible under this act, and to consider the evidence which shall have been or which may be offered by the respective claimants, and in opposition thereto, allowing such further time for the production of such further evidence as may be required and as it shall think reasonable and just, and shall thereupon proceed to determine and award upon each of said claims according to the provisions of this act.

Arrange and docket the several claims. The judges framed and issued their rules of court July 24, 1874 and adjourned, meeting

petition filed in season. The petition in Patterson v. United States, was amended subsequently, by filing one in usual form. No objection in either case appears to have been raised by counsel in behalf of the United States. Perhaps the act of March 6, 1876 (19 Stat. at Large, 6, Appendix, III.) may have been treated as enlarging the time. At all events, it has been thought worth while to make note of these two claims.

1 Rep. 12, 13.

again in October. Petitions, as they came in, received a docket number, and at the expiration of the first period allowed for filing claims, the docket contained 1,383 cases. These claims aggregated $12,673,451.44 exclusive of interest. The clerk, for the convenience of the court and the bar, prepared a printed docket, and furnished the bar also with printed copies of opinions immediately upon their delivery. In the additional time given for filing petitions 685 cases were added to the docket, in which was claimed, excluding interest, the sum of $1,825,865.55.

The court, therefore, passed upon 2,068 cases, in which the amount claimed was very nearly fourteen and a half million of dollars, not including interest. They awarded in all the sum of $9,316,120.25 which includes interest on the amount of the loss, at four per centum per annum from its date.

Section eight of the act of 1874 is as follows:

"That the judges of the court created by this act shall convene in the city of Washington as soon as conveniently may be after their appointment; and the said court shall exist for one year from the date of its first convening and organizing; and should it be found impracticable to complete the work of the said court before the expiration of the said one year, the President may, by proclamation, extend the time of the duration thereof to a period not more than six months beyond the expiration of the said one year; and in such case all the provisions of this act shall be taken and held to be the same as though the continuance of the said court had been originally fixed by this act at the limit to which it may be thus extended."

PRACTICE AND PROCEEDINGS.

SECTION 4. That the practice and proceedings established and directed by said chapter four hundred and fifty-nine shall be followed and had in regard to all claims provable under this act; and it shall be the duty of the said court hereby re-established, in the mode and subject to all the conditions, limitations, and provisions of said chapter four hundred and fifty-nine, except as changed and modified by this act, to receive and examine the

claims mentioned in section five of this act and to enter judgments for the amount allowed therefor in two classes.

This important section refers us to the several provisions of the act of 1874 that limit and determine the powers of the court in respect to its procedure. The decisions of the court itself, interpreting the meaning of these provisions are, therefore, binding upon the tribunal re-established by the present act, until the latter shall find it necessary to overrule them.

We have seen that the opening section of the new act re-establishes the court," in the manner and with the obligations, duties, and powers imposed and conferred" by the act of 1874, "except as changed or modified by this act." The present section makes it the duty of the court to receive and examine claims, and to enter judgments, "in the mode [directed by] and subject to all the conditions, limitations, and provisions of," the act of 1874, under a similar exception. How far this operates to re-enact the former statute is an inquiry that may properly be postponed until we come to construe words in the new act that demand for their true construction a comparison of the two statutes. It is enough at this stage, to say that Congress has not in express language re-enacted the act of 1874; that the purpose of the present act, however, is identical with that of the former act; that the same means are invoked to carry this purpose into effect; and finally that the changes and modifications alluded to will be found to extend no further than to submit a new class of claims to their jurisdiction, which so far from abridging the power and authority of the court, would seem rather to enlarge it.

Section nine of the act of 1874 is as follows:

"That all records, documents, or other papers which now or hereafter, during the continuance of the court, may come into the possession of the Department of State, in relation to such claims, and which shall be found necessary to the examination and adjudication of the same, shall, upon the order or requisition of said court, be delivered to the court for that purpose, and to be given such weight as evidence as the court shall think just."

Records, documents, or other papers. When the Confederate cruisers had fairly entered upon their career of destruction to

American commerce upon the ocean, the owners of destroyed property turned to the Government of the United States for protection and redress. Shipowners, merchants, and insurers of ships and cargoes against war risks sent to the Secretary of State statements of their losses, drawn up in such form and with such documentary proof as seemed to the petitioner best suited to his purpose. Generally the papers assumed the shape of a formal memorial, setting out the facts, supported by the oath of the memorialist, and accompanied by documents of a corroborative character, either originals or attested copies, such as master's protests, ship's registers, invoices, bills of lading, policies of insurance, affidavits of value, and the like.1

At first, the Department treated the cases individually, transmitting a statement of the claim with the proofs to Mr. Adams, at London, to be laid before the English Government, with a request for redress. The earliest claims that our Government laid before Great Britain, with a notice that we should expect indemnity for both national and private losses, were those growing out of the destruction of ten whaling vessels at Flores, one of the Azores, by the "Alabama," in September, 1862, not long after her escape from Liverpool. The owners had sent statements of their losses to the Department, and Mr. Seward forwarded copies to Mr. Adams, October 25, 1862. On November 20 following, Mr. Adams addressed a letter to Earl Russell, enclosing these copies and closing with the words: "I have the honor to inform your lordship of the directions which I have received from my Government to solicit redress for the national and private injuries already thus sustained, as well as a more effective prevention of any repetition of such lawless and injurious proceedings in her Majesty's ports hereafter." 2

1 The first memorial entered upon the files of the Department was that of the owners of the "Harvey Birch." This ship, when ten days out from Havre for New York, in ballast, was captured and burned by the "Nashville," November 16, 1861. The counsel for the owners notified the Department, by letter of December 18, 1861, that he would transmit a memorial and accompanying papers relating to the loss, which he accordingly did. He filed, among other papers, a printed pamphlet, descriptive of the capture, and also a written argument presenting reasons why, according to principles of international law, Great Britain ought to be held responsible in the premises. Mr. Adams had already transmitted to Earl Russell, by letter of November 22, 1861, papers received from Mr. Morse, our consul at London, respecting "the wanton capture of this vessel, and had asked that an inquiry be made. Am. App. Vol. II. p. 545.

2 Am. App. vol. III. p. 70.