claims: [Provided also, That the jurisdiction of the court of claims shall not extend to any claim against the United States growing out of the destruction or appropriation of, or damage to, property, by the army or navy engaged in the suppression of the rebellion.]

12 Mar., 1863, c. 120, s. 3, v. 12, p. 820; 2 July, 1864, c. 225, ss. 2, 3, v. 13, pp. 375, 376; 27 July, 1868, c. 276, s. 3, v. 15, p. 243; 18 Feb., 1875, c. 80, v. 18, p. 318.

No jurisdiction over equitable claims.-"The court of claims has no equitable jurisdiction, and was not created to inquire into rights in equity set up by the claimants, against the United States. Congress did not think proper to part with the consideration of such questions, but wisely reserved to itself the power to dispose of them. Immunity from suit is an incident of sovereignty; but the government of the United States in a spirit of great liberality, waived that immunity in favor of those persons who had claims against it which were founded upon any law of congress or regulation of an executive department, or upon any contract with it, express or implied, and gave the court of claims the power to hear and determine cases of this nature." Mr. Justice DAVIS, in Bonner v. United States, 9 Wall., 156. But, see, where equity powers were given for a particular purpose, Harvey's Case, 13 Ct. Cl., 322; Tillson v. United States, 100 U. S., 43.

No jurisdiction of cases arising under the revenue laws.— The remedy for errors in the administration of the revenue laws is pointed out in the statute, which must be pursued by those aggrieved, and questions of this character can be presented to the courts after an appeal has been taken to the commissioner of internal revenue. But the court of claims has no jurisdiction of such cases. Nichols v. United States, 7 Wall., 122. So, the power given by the act of congress to the secretary of the treasury to remit penalties is one of discretion, and admits of no appeal to the court of claims. Dorsheimer v. United States, Id., 167. See, also, Virgo's Case, 21 Id., 648, where it was held that the United States could appeal from the decisions of the court of claims to the Supreme Court.

Where the government, in an emergency, takes private property to its use, there is an implied promise to compensate the owner, and the court of claims has jurisdiction of such a case. United States v. Russell, 13 Wall., 623. See, also, United States v. Bostwick, 94 U. S., 53.

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The United States may set off claim whether liquidated or not.-In Allen v. United States, 17 Wall., 207, the court, referring to the provisions of the statute relating to set-offs and counter-claims by the government, say: "The statute is broad enough to authorize the court of claims, in suits against the United States, to hear and determine demands of the government of every kind against the claimant, or those whom the claimant represents, whether liquidated or unliquidated, and to set off against the claim in suit the amount found in favor of the United States upon such hearing and determination."

In Macauley v. United States, 11 Ct. Cl., 693, it was held that where the government had recovered judgment against M., and took an assignment of a judgment in his favor against B. in satisfaction thereof, they might set off said judgment in a suit by B. to recover an award in his favor made by congress, and that this right existed, though B. had assigned his award to M.: Provided, the set-off was acquired before notice of the assignment.

Set-off or counter-claim must be pleaded.-In United States v. O'Grady, 22 Wall., 641, it was held that in order for the government to avail itself of the provisions of the statute relating to set-offs and counterclaims, it is necessary that it plead the special matter by way of set-off or counter-claim to the suit. It cannot after judgment for the amount claimed by the petition, set up and deduct at the treasury the counter-claim when demand for the amount awarded is made there. Judgments of the court of claims, where no appeal is taken to the Supreme Court, are absolutely conclusive of the rights of parties, unless a new trial is granted as provided by sections 1087, 1088, of the revised statutes. Ex parte Russell, 13 Wall., 664. A demand of the United States for proceeds of Indian trust bonds, wrongfully converted, may be treated as a demand arising upon an implied contract and a proper set-off by the United States to a demand by the general assignees in insolvency of the parties who had wrongfully converted the bonds. Allen v. United States, 17 Wall., 207.

Property in waging war, etc.-Under the provisions of the "abandoned and captured property act," no claim can be allowed for property which "has been used in waging or carrying on war against the United States," and the court of claims has no jurisdiction to try cases growing out of the appropriation of property by the army or navy. Slawson v. United States, 16 Wall., 310.

Nor can a suit be maintained against the United States under said act, if the property in question was neither captured, seized, nor sold, pursuant to its provisions, and the proceeds were not paid into the treasury. Spencer v. United States, 91 U. S., 577.

Destruction, etc., of property by army or navy.-The court of claims has no jurisdiction over claims against the United States growing out of the destruction or appropriation of property by the army or navy, engaged in the suppression of the rebellion. The remedy in such cases is through the executive or legislative departments of the government. United States v. Kimbal, 13 Wall., 636. See, however, United States v. Russel, Id., 623, in which case the jurisdiction of the court was sustained, under a certain finding of facts, for property taken in an emergency. Also, United States v. Crusell, 14 Id., 1.

SEC. 1060. Private claims in congress, when transmitted to court of claims.-All petitions and bills praying or providing for the satisfaction of private claims against the government, founded upon any law of congress, or upon any regulation of an executive department, or upon any contract,

expressed or implied, with the government of the United States, shall, unless otherwise ordered by resolution of the house in which they are introduced, be transmitted by the secretary of the senate or the clerk of the house of representatives, with all the accompanying documents, to the court of claims.

3 Mar., 1863, c. 92, s. 2, v. 12, p. 765.

The court acquires jurisdiction by the filing of a petition; verification is not a jurisdictional requisite. It may be verified at any time by leave of court. Griffin v. United States, 13 Ct. Cl., 257.

The court has jurisdiction only in cases on contract, and an implied contract does not arise where an officer of the government is guilty of a tort by taking forcible possession of the land of a person for public use. Langford v. United States, 101 U. S. 341.

SEC. 1061. Judgments for set-off or counter-claim, how enforced.-Upon the trial of any cause in which any setoff, counter-claim, claim for damages, or other demand is set up on the part of the government against any person making claim against the government in said court, the court shall hear and determine such claim or demand both for and against the government and claimant; and if upon the whole case it finds that the claimant is indebted to the government, it shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law. Any transcript of such judgment, filed in the clerk's office of any district or circuit court, shall be entered upon the records thereof, and shall thereby become and be a judgment of such court and be enforced as other judgments in such courts are enforced.

3 Mar., 1863, c. 92, s. 3, v. 12, p. 765.

SEC. 1062. Decree on account of paymasters, etc.Whenever the court of claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing officer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree 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.

9 May, 1866, c. 75, s. 2, v. 14, p. 44.

Paymaster's Hability for negligence.-Where a paymaster sent a package of money to a treasury depository in Boston by an orderly detailed for service at his office, and the package was stolen by the orderly, who was afterward tried and convicted therefor; but the loss was not discovered for some days after the theft, and efforts to recover the money made by the paymaster were unavailing; in a suit in the court of claims, by the administrator of the deceased paymaster, asking relief from responsibility on account of the loss, under the provisions of this section, it was held that the paymaster was at fault and negligent in entrusting so large an amount of money as $2,658, the amount lost, to an orderly in his office, instead of depositing it himself, or sending it by his clerk, and, therefore, that the petitioner was not entitled to the relief from responsibility for which he prayed. Holman v. United States, 11 Ct. Cl., 642. But see Clark's Case, Id., 698; Hall's Case, 9 Id., 270.

SEC. 1063. Claims referred by departments.-Whenever any claim is made against any executive department, involving disputed facts or controverted questions of law, where the amount in controversy exceeds three thousand dollars, or where the decision will affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the particular case, or where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States, the head of such department may cause such claim, with all the vouchers, papers, proofs, and documents pertaining thereto, to be transmitted to the court of claims, and the same shall be there proceeded in as if originally commenced by the voluntary action of the claimant; and the secretary of the treasury may, upon the certificate of any auditor or comptroller of the treasury, direct any account, matter or claim, of the character, amount, or class described in this section, to be transmitted, with all the vouchers, papers, documents, and proofs pertaining thereto, to the said court, for trial and adjudication: Provided, That no case shall be referred by any head of a department unless it belongs to one of the several classes of cases which, by reason of the

subject-matter and character, the said court might, under existing laws, take jurisdiction of on such voluntary action of the claimant.

25 June, 1868, c. 71, s. 7, v. 15, p. 76; 16 June, 1874, c. 285, v. 18, p. 75. Practice-where two parties seek to recover.--Where a claim was transmitted to the court of claims by the secretary of war, and the statement showed that the government occupied certain premises, and that certain rent was due therefor, but that two parties claimed the same; and one of the parties appeared in said court and prosecuted his claim, but the other did not, and the government made no defense, it was held that the party prosecuting could not take judgment by default; that it was not necessary for him to negative the conflicting claim of the adverse party, but that it was necessary for him to show by legal proof a prima facie right to recover. Bright's Case, 8 Ct. Cl., 326.

The court has no authority to make a rule requiring parties to present their claims to an executive department before sueing in the court. Clyde v. United States, 13 Wall., 38.

SEC. 1064. Procedure in cases transmitted by departments. All cases transmitted by the head of any department, or upon the certificate of any auditor or comptroller, according to the provisions of the preceding section, shall be proceeded in as other cases pending in the court of claims, and shall, in all respects, be subject to the same rules and regulations.

25 June, 1868, c. 71, s. 7, v. 15, p. 76.

SEC. 1065. Judgments in cases transmitted by departments-how paid.-The amount of any final judgment or decree rendered in favor of the claimant, in any case transmitted to the court of claims under the two preceding sections, shall be paid out of any specific appropriation applicable to the case, if any such there be; and where no such appropriation exists, the judgment or decree shall be paid in the same manner as other judgments of the said court.

25 June, 1868, c. 71, s. 7, v. 15, p. 76; 3 Mar., 1875, c. 149, v. 18, p. 481.

SEC. 1066. Claims growing out of treaties not cognizable therein.-The jurisdiction of the said court shall not extend to any claim against the government not pending therein on December one, eighteen hundred and sixty-two,