Har U. S. (1877), 97 U. S. 39, 24 L. Ed. 992. A loyal person surrounded by contending armies is not bound to abandon his family; and removing it to a retired place of safety, though within the Confederate lines, is not aid and comfort. Hayden v. U. S. (1868), 4 Ct. Cl. 475. Involuntary patrol duty in the "home guard" of Mobile, not military, but in the nature of police duty, is not "aid or comfort." Miller v. U. S. (1868), 4 Ct. Cl. 288. It is not aid or comfort to the rebellion for an alien, resident abroad, to purchase the products of the insurrectionary districts for ordinary business purposes through a commercial house within the rebel lines, and to accept and pay drafts abroad drawn for the purchase price of the products. rison v. U. S. (1870), 6 Ct. Cl. 323. The mere writing of a letter during the rebellion by a British subject resident within the insurrectionary districts, addressed to the head of the rebel Government, unaccompanied by the sending, uttering, or publishing thereof, is not an act of aid or comfort to the rebellion, though it contain proffer of services. But the writing and sending of such a letter is aid and comfort to the rebellion, in violation of the alien's proper neutrality. Medway v. U. S. (1870), 6 Ct. Cl. 421. To unite in forming a copartnership for the purpose of running the blockade, shipping cotton, and bringing into the insurrectionary States articles suited to the wants of the people, the sanction of the Government to be first given, and nothing in fact being done by the copartnership, does not constitute aid or comfort to the rebellion. Austell v. U. S. (1871), 7 Ct. Cl. 599. The bombardment of Sumter was the beginning of the Rebellion, and if from that event a citizen did faithfully and consistently adhere to the United States, his previous errors should not be deemed sufficient to attach to him the infamy of treason. Culliton v. U. S. (1869) 5 Ct. Cl. 627. See Lynch v. U. S. (1867) 3 Ct. Cl. 392. Presumptions and burden of proof.-The presumptions of loyalty are in favor of a claimant residing before and during the Rebellion in a loyal State, though he continue to own and work a plantation in Louisiana, as they are against one residing in a disloyal State. Turner v. U. S. (1867), 3 Ct. Cl. 400; Wayne v. U. S. (1868), 4 Ct Cl. 426; Fordham v. U. S. (1868), 4 Ct. Cl. 469. But see Thomas v. U. S. (1867), 3 Ct. Cl. 52, as to presumptions as to a colored freeman residing in insurgent States. The residence of a citizen of a loyal State, for the purpose of gain, in a territory where the Rebel force holds sway, is prima facie evidence of giving aid and comfort. Stark v. U. S. (1868), 4 Ct. Cl. 280. But where a claimant shows that his residence within the insurrectionary States during a part of the Rebellion was involuntary, and establishes his loyalty for the remainder, a presumption exists in favor of his loyalty. Ealer v. U. S. (1868), 4 Ct. Cl. 372. The presumption of disloyalty does not attach to the citizen of a loyal State who was temporarily in the South at the outbreak of the Rebellion, and, being aged, infirm, and poor, was unable to escape. Spain v. U. S. (1869), 5 Ct. Cl. 598. The court will regard with suspicion the loyalty of a person who held Confederate bonds, or who embarked in the organization of a company designed to purchase steamers with a view to import and export merchandise. Claussen v. U. S. (1867), 3 Ct. Cl. 253. A claimant should establish the fact that he did not give aid and comfort by his intimate associates, or at least by witnesses of whom some knowledge exists that they themselves were loyal, and not by his employees, or those interested in the property, the value of which is claimed. Id. And must show that he complied with the rigid requirements of the law in relation to allegiance and conduct during the Rebellion. Grossmeyer v. U. S. (1868), 4 Ct. Cl. 1. Direct and positive proof of loyalty is required. Dothage v. U. S. (1868), 4 Ct. Cl. 208. Claimants held required to prove affirmatively their loyalty. Zellner v. U. S. (1868), 4 Ct. Cl. 480. Testimony of a single witness negative in its character, is not satisfactory proof of loyalty, where the claimant voluntarily resided during the Rebellion within the insurrectionary districts, and had friends and neighbors who might testify as to his conduct during the war. Patterson v. U. S. (1870), 6 Ct. Cl. 40. It is sufficient for a body corporate to show that it never gave aid or comfort to the Rebellion, by showing that it was incorporated for a lawful purpose, and that it never applied any part of its funds to aid the Rebellion. Hebrew Congregation Benai Berith Jacob v. U. S. (1870), 6 Ct. Cl. 241. Loyalty which a claimant may seek to establish must be shown both negatively and positively-that he never gave aid or comfort to the Rebellion, that he has consistently adhered to the United States. Wylie v. U. S. (1870), 6 Ct. Cl. 295. See, also, Dereef v. U. S. (1867), 3 Ct. Cl. 163 [C. S. p. 1524]. Amnesty. The proclamation of Dec. 25, 1868, relieves a citizen coming within its terms from making proof of loyalty. Witkowski v. U. S. (1871), 7 Ct. Cl. 393; Waring v. U. S. (1871), 7 Ct. Cl. 501. See U. S. v. Padelford (1869), 9 Wall. 531, 19 L. Ed. 788. And see Pargoud v. U. S. (1868), 4 Ct. Cl. 337. and proof of pardon for any acts of disloyalty committed during the Civil War, and for that purpose the general amnesty granted Dec. 25, 1868, furnishes sufficient proof. Lincoln v. U. S. (1914), 49 Ct. Cl. 300. Expressed sentiments of loyalty, going beyond the Confederate lines, acts of kindness to Union prisoners, rendering services to United States military forces, or freeing slaves held proof of loyalty. Foley v. U. S. (1867). [C. S. p. 1525]. Loyalty not proved.-Gearing v. U. S. (1867), 3 Ct. Cl. 165. [C. S. p. 1525]. 457. Claim dismissed on account of disloyalty.—The said allegations as to true allegiance and voluntary aiding, abetting, or giving encouragement to rebellion against the Government may be traversed by the Government, and if on the trial such issues shall be decided against the claimant, his petition shall be dismissed. Sec. 160, Judicial Code, act of Mar. 3, 1911 (36 Stat. 1139). Notes of Decisions. Construction and operation in general.— This statute, being an enactment of former statutes, is to be construed as the original statutes were construed by the Supreme Court. Lincoln v. U. S. (1914), 49 Ct. Cl. 300. And must be executed with the limitations previously imposed by the Supreme Court. The proceedings go on under the Code just as under the original statutes relating to loyalty. Duncan v. U. S. (1913), 48 Ct. Cl. 488. If one member of a business firm within the insurrectionary districts give aid or comfort to the rebellion, it defeats a recovery as to all of the firm, for the court can not sever the copartners, nor ascertain their individual interests. Schreiner v. U. S. (1870), 6 Ct. Cl. 359. But where the joint owners of captured property bring a joint suit for the proceeds, and the one establishes his loyalty and the other fails to do so, judgment will be rendered in favor of the one to the extent of his joint interest in the fund, and the petition of the other will be dismissed. Meldrim v. U. S. (1871), 7 Ct. Cl. 595. R. S., sec. 1073 (embodied herein), does not require an executor to prove the loyalty of his testator, for only proof of the loyalty of him who sues is required. White v. U. S. 1884), 19 Ct. Cl. 436. Issues. When a party sells goods to one whom he alleges to be the agent of a quartermaster, and all of the allegations of the petition are traversed, he must prove the appointment of both the quartermaster and of his agent. Calkins v. U. S. (1865), 1 Ct. Cl. 382. 458. Jurisdiction of the Court of Claims over demands by the United States.-The Court of Claims shall have jurisdiction to hear and determine the following matters: * Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: Provided, That no suit against the Government of the United States, brought by any officer of the United States to recover fees for services alleged to have been performed for the United States, shall be allowed under this chapter until an account for said fees shall have been rendered and finally acted upon as required by law, unless the proper accounting officer of the Treasury fails to act finally thereon within six months after the account is received in said office. Par. 2, sec. 145, Judicial Code, act of Mar. 3, 1911 (36 Stat. 1137). Notes of Decisions. Set-off. The right of set-off did not exist at common law, and is everywhere founded apon statutory regulation. Tillou v. U. S. 1 Ct. Cl. 220; 2 id. 588, and U. S. v. Eckford, 6 Wall. 484. State laws.-State laws in such a case do not constitute the rule of decision, but the question arises, exclusively, under the act of Congress; and no local law nor usage can have any influence in its determination. Tillou v. U. S. (1865), 1 Ct. Cl. 220; 2 id. 588; Reeside v. Walker (1850), 11 How. 272, 290. 459. Jurisdiction of the Court of Claims over petition for relief from responsibility. The Court of Claims shall have jurisdiction to hear and determine the following matters: * * * Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of loss by capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible. Par. 3, sec. 145, Judicial Code, act of March 3, 1911 (36 Stat. 1137). Notes of Decisions. Construction and operation in general.—— The provision is prospective, and gives jurisdiction in cases which might occur, as well as in cases which had occurred at the time of its passage. Glenn v. U. S. (1868), 4 Ct. Cl. 501. Gives disbursing officers a right to relief which they did not possess before. Boggs v. U. S. (1909), 44 Ct. Cl. 367. Is not limited to times of war. Penrose v. U. S. (1906), 42 Ct. Cl. 29. Disbursing officers within statute.-This provision is not limited to officers of the Army and Navy, but extends to disbursing officers of the executive departments. Hobbs v. U. S. (1881), 17 Ct. Cl. 189. The term "other disbursing officer " must be confined to the class of disbursing officers previously described. Henderson v. U. S. (1907), 42 Ct. Cl. 449. An acting commissary of subsistence intrusted with Government funds is within the statute. Wood v. U. S. (1889), 25 Ct. Cl. 98. The officer intrusted with a company fund is as responsible for it as for any other money confided to his care as a disbursing officer. Wood v. U. S. (1913), 48 Ct. Cl. 80. Losses within statute.-"Losses by capture or otherwise" are losses by capture, robbery, theft, fire, or unavoidable accident, but not losses suffered through forgeries committed by the officer's clerk, as to which he would have recourse against the depositary. Hall v. U. S. (1873), 9 Ct. Cl. 270. The words or otherwise apply to losses occurring in any other way than by capture. Stevens v. U. S. (1906), 41 Ct. Cl. 344. An officer is entitled to credit for money taken from him, during his absence on duty, by a raiding party of rebels; he having left it safely locked in a chest in a building where other disbursing officers kept their funds, the building being in the charge of a sergeant detailed for duty in the office. Prime v. U. S. (1867), 3 Ct. Cl. 209. An officer in the receipt of public money, who is daily called on to disburse the same, should receive credit therefor, where his vouchers were captured by the enemy; it appearing that the return was prevented by incessant duty of the officer and his clerk, the danger of capture not having been supposed to be imminent. Murphy v. U. S. (1867), 3 Ct. Cl. 212. A disbursing officer, who in good faith de posited money in a designated depository, is not liable for loss through the bank's failure. Hobbs v. U. S. (1881), 17 Ct. Cl. 189. And an officer who gives receipts and accepts cash from his predecessor assumes responsibility for the correctness of the balances transferred to him, and if he does not verify them is responsible for any resulting loss. Boggs v. U. S. (1909), 44 Ct. Cl. 367. In an action of trover in the United States circuit court against an exSecretary of the Treasury for the value of certain cotton, it appeared that, so far as defendant was concerned, the cotton was seized in good faith as captured or abandoned property. Held that, irrespective of whether or not it was captured or abandoned property, the action is barred by R. S. sec. 1059, embodied herein. Lamar v. McCulloch (1885), 6 S. Ct. 1, 115 U. S. 163, 29 L. Ed. 360. See Hobbs v. U. S. (1881), 17 Ct. Cl. 189, holding that provision extends to losses caused by the failure of a designated depository. And see Hall v. U. S. (1873), 9 Ct. Cl. 270, holding that losses suffered through forgeries by a clerk as to which the officer had a recourse against the depositary was not within statute. And see post, 465, and notes thereunder. Jurisdiction. Jurisdiction is acquired by claimant appearing and filing his petition for relief. Boggs v. U. S. (1909), 44 Ct. Cl. 367. But a petition does not become a claim until there has been on the part of the Government some authoritative demand for payment or a refusal to allow credit. Scott v. U. S. (1882), 18 Ct. Cl. 1. The power given to accounting officers to duplicate lost checks is not exclusive, and does not affect the jurisdiction of the court. Becker v. U. S. (1891), 26 Ct. Cl. 172. Burden of proof.-The burden of proof rests on the officer. Boggs v. U. S. (1909), 44 Ct. Cl. 367. And his testimony alone is insufficient, when there were disinterested parties cognizant of all the circumstances. The court should set forth in its findings the amount of loss, if any, which the petitioner has sustained. U. S. v. Clark (1876), 94 U. S. 73, 75, 24 L. Ed. 67. Rules regulating appeals.-Act May 9, 1866 (14 Stat. 44), incorporated into his provision, does not dispense with the requirements of the Supreme Court rules regulating appeals from the Court of Claims. U. S. v. Clark (1876), 94 U. S. 73, 75, 24 L. Ed. 67. Limitations.-It was held by the Supreme Court in U. S. v. Smith (14 Ct. Cls. 114, and 105 U. S. 620) that the statute of limitation applied to cases arising under this section. 460. Procedure in the Court of Claims where debtor alleges no settlement within three years.-Whenever any person shall present his petition to the Court of Claims alleging that he is or has been indebted to the United States as an officer or agent thereof, or by virtue of any contract therewith, or that he is the guarantor, or surety, or personal representative of any officer or agent or contractor so indebted, or that he or the person for whom he is such surety, guarantor, or personal representative has held any office or agency under the United States, or entered into any contract therewith, under which it may be or has been claimed that an indebtedness to the United States had arisen and exists, and that he or the person he represents has applied to the proper department of the Government requesting that the account of such office, agency, or indebtedness may be adjusted and settled, and that three years have elapsed from the date of such application, and said account still remains unsettled and unadjusted, and that no suit upon the same has been brought by the United States, said court shall, due notice first being given to the head of said department and to the Attorney General of the United States, proceed to hear the parties and to ascertain the amount, if any, due the United States on said account. The Attorney General shall represent the United States at the hearing of said cause. The court may postpone the same from time to time whenever justice shall require. The judgment of said court or of the Supreme Court of the United States, to which an appeal shall lie, as in other cases, as to the amount due, shall be binding and conclusive upon the parties. The payment of such amount so found due by the court shall discharge such obligation. An action shall accrue to the United States against such principal, or surety, or representative to recover the amount so found due, which may be brought at any time within three years after the final judgment of said court; and unless suit shall be brought within said time, such claim and the claim on the original indebtedness shall be forever barred. The provisions of section one hundred and sixty-six shall apply to cases under this section. Sec. 180, Judicial Code, act of Mar. 3, 1911 (36 Stat. 1141). Sec. 166 above referred to provides for the examination of claimant before commissioner and the action on failure to testify. Notes of Decisions. Construction in general.-The object of the statute is to secure a speedy and final settlement of the Government's demands. Gerding v. U. S. (1891), 26 Ct. Cl. 319. Jurisdiction and power of court.-The court, on proper petition, may adjudicate and settle matters unadjusted in the department in which claimant does not demand a judgment or claim an indebtedness to him, but concedes that he is or has been indebted to the United States as an officer or agent. There can be no affirmative judgment in favor of the claimant. Gerding v. U. S. (1891), 26 Ct. Cl. 319. And the utmost that the court can de termine in favor of the claimant is that he owes nothing. Gerding v. U. S. (1893), 28 Ct. Cl. 531. Pleadings. The petition must allege that there is or has been an indebtedness to the United States, and other facts disclosing jurisdiction. The allegation "that it has been claimed that the said W. V., under his said office, and upon his said accounts, is indebted to the United States," is not sufficient, if it is likewise alleged that the claimant never was indebted to the Government, and that the Government, in fact, was indebted to him. Gerding v. U. S. (1891), 26 Ct. Cl. 319. 461. Court of Claims may call on a department for information.-The said court shall have power to call upon any of the departments for any informa tion or papers it may deem necessary, and shall have the use of all recorded and printed reports made by the committees of each House of Congress, when deemed necessary in the prosecution of its business. But the head of any department may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest. Sec. 164, Judicial Code, act of Mar. 3, 1911 (36 Stat., 1140). Notes of Decisions. v. Clyde (1871), 13 Wall. 38, 39, 20 L. Ed. 479. Authority of court to call for information or papers. The court has discretion to determine whether the evidence sought for is necessary or admissible. Woolverton v. U. S. (1891), 26 Ct. Cl. 215. And will not call for evidence presumptively in the hands of claimant. In re Calls for Evidence (1898), 33 Ct. Cl. 354. That papers are on file in a department will not give a party a right to have them brought into court. Woolverton v. U. S. (1891), 26 Ct. Cl. 215. The Auditor of the Treasury for the Post Office Department is an officer of the Treasury Department and accounts of postmasters in his custody are in the Treasury Department, within this section. (1894) 20 Op. Atty. Gen. 677. Nature and requisites of calls.--A call on a department is in the nature of a subpona duces tecum and can not be turned into a bill of discovery. In re Calls for Evidence (1898), 33 Ct. Cl. 354. There must be sufficient particularity in a call to enable an intelligent clerk in the ordinary discharge of his duty to find the record. The responsibility of determining what is relevant can not be thrown upon the department. The evidence must appear on the face of the call to be relevant, material, and competent. A call for correspondence between the departments and its agents may be allowed, to show that other contractors were guilty of the delay and that claimant was compelled to wait for them. Calls should not be allowed where they are so general that they throw the responsibility of selecting the evidence upon the clerks or where they are presumably in the party's possession. Robinson v. U. S. (1913), 48 Ct. Cl. 454. Authority and duty of departmental heads. Replies to calls can not admit or waive any valid defense to a claim, nor create a cause of action. Leonard v. C. S. (1883), 18 Ct. Cl. 382. The head of a department is not at liberty to furnish on call information or papers, when to do so would, in his opinion, be injurious to the public interest. (1871) 13 Op. Atty. Gen. 539. And see also (1905) 25 Op. Atty. Gen. 326, holding that he may de |