penting officers of the Treasury, and so -set appertain to the administration of * War Department. (1890) 19 Op. Atty. 6363 duty of the Secretary of War in the of a claim under this act is limited to etermination of whether the property for the loss of which indemnity is claimed reasonable, useful, necessary, and per for the claimant. Id. Limitation. -- Claims under this act must have been presented to the proper accountby officers within two years from the nee of the loss, Newcomer c. U. S. 12 59, 51 Ct. CL. 408; Goodman v. U. S. 15 7), 32 Ct. Cl. 244. Aess of private property occurring May 14 1899, aboard a transport bound from Port › Rieu to New York which was wrecked, wh the troops aboard were destined te service in the Philippines after re ***ing in New York, was not "in time of war within the meaning of the act of bear 3, 1××5. Goodman v. U. S. (1917), ACL 244. La occurring during officer's leave of ab The absence of an officer properly or : ave at the time of the loss will not exime hầm from the relief given by the stat- if the loss was without fault or neglirbia port. Purssell e. V. S. (1911), CL 09. Fality of award.-Where the claim of Lay officer for the loss of private prop eg is the service was audited, allowed, rid in the usual manner, the Govteald not reclaim the money withwat wing that it was obtained by fraud eer a mistake of fact, notwithstand- July 31, 1894, providing that a re1 of an account by the Comptroller of 1. Ireasury may be obtained within a year : it has been settled by the auditor. r. Orasted (1902), 118 Fed. 433, 55 ( A. 249. A payment made pursuant to this act rat set be recovered back, in the absence of mist.ke or fraud, which is not shown by a eria.nt stating that, after payment of the elim, the department disallowed the claim for the reason that the loss was not without fruit of the claimant; this being at an tion of the reason assigned by the de; rent for its action, and not an allegaan of the fact that the loss was not with out his fault. U. S. v. Willcox (1902), 118 Fed. 729, 55 C. C. A. 519. Where the claim of an Army officer against the Government for the value of personal property lost in the service, presented under this section, was allowed by the Auditor for the War Department, and paid, the Government can not recover the amount so paid from such officer upon a petition showing that the claim was subsequently revised by the comptroller and disallowed because of the insufliciency of the proofs, and that the auditor thereafter settled the claim, and charged the amount back to the officer, there being no allegation of fraud or mistake, or that the claim was not in fact one properly allowable under the statute; and especially where it is not shown that the oficer was advised of the action taken after the payment was made. U. S. v. Olmsted (C. C. 1900), 106 Fed. 286. Acceptance by claimant of amount allowed 88 satisfaction. The acceptance by the claimant of the amount allowed by the aecounting officers operates as a satisfaction of the claim. Purssell v. U. S. (1911), 46 Ct. Cl. 509. Effect of act as limiting jurisdiction of Court of Claims.-This act has no application to the judiciary and is no limitation on the jurisdiction of the Court of Claims in cases for horses lost in the military service. Cox v. U. S. (1906), 41 Ct. CI. 86. Privately owned horses.-The term "private property" includes all articles carried by the persons enumerated into the milltary service which were indispensable to the conditions of that service and compre hends privately owned horses, inasmuch as they are not specifically excluded by the terms of the act. Andrews et al. v. U. S. (1917), 52 Ct. Cl. 373. Statute construed; liability. The act of 1885 is expressly limited to times of peace, but the term "In the military service" has a universally accepted legal meaning, and Congress clearly did not intend to make the Government an insurer of privately owned property while in the military serv. ice, but limited liability to the loss and destruction of such property directly caused by military service and in nowise attributable to the fault or negligence of the soldier. Id. And 337 Claims for damage or loss of baggage shipped under orders.-* pended further, That the provisions of the Act of March third, eighteen hunGivi and eighty five (Twenty-third Statutes, page three hundred and fifty), entated “An Act to provide for the settlement of the claims of officers and enlisted ron of the Army for loss of private property destroyed in the military service of The Urated States," shall hereafter extend to cover loss of or damage to the gation allowance of baggage of officers and enlisted men sustained in ship ment under orders, to the extent of such loss or damage over and above the amount recoverable from the carrier furnishing the transportation. Act of Mar. 4, 1915 (38 Stat. 1077). Act Mar. 3, 1885, mentioned in this section, is set forth ante, 336. 338. Claims for horses lost in battle, etc.-Any field, or staff, or other officer, mounted militiaman, volunteer, ranger, or cavalryman, engaged in the military service of the United States, who sustains damage without any fault or negligence on his part, while in the service, by the loss of a horse in battle, or by the loss of a horse wounded in battle, which dies of the wound, or which, being so wounded, is abandoned by order of his officer and lost, or who sustains damage by the loss of any horse by death or abandonment because of the unavoidable dangers of the sea, when on board a United States transport vessel, or because the United States fails to supply transportation for the horse, and the owner is compelled by the order of his commanding officer to embark and leave him, or in consequence of the United States failing to supply sufficient forage, or because the rider is dismounted and separated from his horse and ordered to do duty on foot at a station detached from his horse, or when the officer in the immediate command orders the horse turned out to graze in the woods, prairies, or commons, because the United States fails to supply sufficient forage, and the loss is consequent thereon, or for the loss of necessary equipage, in consequence of the loss of his horse, shall be allowed and paid the value thereof, not to exceed two hundred dollars. But any payment which is made to any one for the use and risk, or for forage, after the death, loss, or abandonment of his horse, shall be deducted from the value thereof, unless he satisfies the paymaster at the time he makes the payment, or thereafter shows, by proof, that he was remounted, in which case the deduction shall only extend to the time he was on foot. And any payment made to any person above mentioned, on account of clothing to which he is not entitled by law, shall be deducted from the value of his horse or accouterments. R. S. 3482. A permanent appropriation to pay for horses and other property lost, etc., in the military service, under the provisions of this title, was made by R. S. 3689, post, 345. The above section, by reason of the acts of Jan. 9, 1883 (22 Stat. 401), and Aug. 13, 1888 (25 Stat. 437), expired in 1891 (U. S. v. Babcock (1919), 250 U. S. 328; Griffis v. U. S. (1917), 52 Ct. Cl. 170, 198), but as the notes of decisions following are chiefly based on said section, the text has been printed for convenience of access. Notes of Decisions. History of legislation.-See Griffis v. U. S. (1916), 52 Ct. Cl. 1. Construction, operation, and effect in general. The statute regards the separation of a man from his horse by compelling him to do duty at another station as a proximate cause, and in such a case the court can not go behind that cause to inquire whether the separation was brought about by the soldier's neglect. Valdez v. U. S. (1880), 16 Ct. Cl. 550. The statute casts all risks upon the Government where "the rider was dismounted and separated from his horse, and ordered to do duty at a station detached from his horse." In contemplation of the statute, the soldier is entitled to retain the care and custody of his own horse so long as he is held responsible for its loss. Id. The purpose of this act, so far as it relates to officers or soldiers furnishing their own horses, was twofold: To enable the Government to hire horses at low rates; to apportion the risk between the owner and the employer. Id. The obligations which the statutes cast upon the Government and upon the officer or soldier furnishing his own horse stated. Id. In time of war and in conflicts with Indians, horses, if killed, or captured without negligence or undue carelessness on the part of their owners, will be paid for by the Government, under this section. Sibley v. U. S. (1914), 49 Ct. Cl. 242. By the term "battle" the statute includes all the encounters which may occur between the troops of contending armies. Powell v. | circumstances apply to officers of the Regu U S. (1865), 1 Ct. Cl. 400. "I'se" of a horse, in this act, does not mean the active employment of the animal in a military expedition. (1858) 9 Op. Atty Gen. 151. The word "mounted" does not necessarily imply that the soldier is either on his horse or with his horse. It indicates the general character of the corps or service. Id. Under this act the fact of a payment having been made to a soldier as a mounted man after the loss of his horse is not conclusive evidence that he was remounted during the time for which he was paid. (1858) 9 Op. Atty. Gen. 185. This act is a remedial statute, and should accordingly be construed so as to advance the remedy. (1861) 10 Op. Atty. Gen. 21. Claims of officers and soldiers for horses lost in the military service, where their horses were in service simply as a part of the equipment belonging to and furnished by them, are allowable only under the provisions of the first section. (1874) 14 Op. Atty Gen. 360. The first and second sections of this net provide respectively for separate and distinct classes of claims. The two classes distinguished. Id. A Heutenant went on an expedition up the Red River, leaving his horse and saddle behind with the regiment to which he belonged. During his absence the borse and saddle were, by oor of the colonel of his regiment, taken and used in the military service without his knowledge and consent, and while so in such service were lost. Claim being made by him for the value of the property under this act, held, that the case f Is within the second seetion, and not the first section, of that act. (1874) 14 Op. Atty. Gen. 367. Effect of act. -Sec. 3482, Revised Statutes, was intended to provide for losses to those engaged in actual military service in time of war. Griffis r. U. S. (1917), 52 C CI. 170. Persons who may receive relief. An officer who is not required by the Army regu lations to be "mounted," but who is de- | tailed on duty which, in the opinion of his commanding general, renders it "necessary and proper" for him to be mounted, may re cover for horses lost in battle (9 Stat L.. 414) Powell r. U. 8. (1865), 1 Ct. Cl. 400, A deserter can not recover for his horse, eaptured by the enemy, under act Mar 3, 1849 (9 Stat. 414), though his claim comes within the very letter of the statute. Tapia . US (1880), 16 Ct, Cl. 561 The statutes in force which provide in demnity for officers' horses lost in certain lar Army as well as to volunteers. (1857) 8 Op. Atty. Gen. 293. Under this act mounted volunteers are entitled to compensation for horses lost or destroyed by unavoidable accident while in the service of the United States. (1859) 9 Op. Atty. Gen. 334. Equipment for which payment may be made. The relief given to an officer by the statute can not be extended so as to include swords, pistols, or any other property than horses and horse equipage. Powell v. U. S. (1865), 1 Ct. Cl. 400. The "equipage" referred to by the statute is horse equipage; and by the term necessary equipage" is meant only the (quipage prescribed by regulations. Id. An officer may recover for more than one horse lost in the same battle; but the recovery is limited to the number which the Army regulations require him to keep. Id. The statute makes no distinction between n soldier's horse and horse equipments. Where the loss was due to the same cause, the liability follows the same rule. Valdez r. U. 8. (1880), 16 Ct. CI. 550. Requisite facts to authorize recovery.To authorize a judgment it is necessary to prove: (1) That the claimant owned a borse which he took into the military serv ice; (2) that the horse was lost; (3) that the loss resulted from an exigency or necessity of the military service; and (4) that the loss was without fault or negligence on the part of the claimant. Irby r. U S. (1883), 18 Ct. Cl. 259. Effect of acceptance of commutation in. stead of forage. When soldiers furnish their own forage and receive commutation pay therefor, they are estopped from setting up, under this act, that the loss was "in consequence of the United States failing to supply sufficient forage." Valdez r. U. 8. (1880), 16 Ct. Cl. 550. If a soldier choses to accept commutatlon instead of forage, he can not recover compensation for the horse which he may starve by his mistaken economy. (1858) 9 Op. Atty. Gen. 151. The receipt of commutation for forage Is not conclusive evidence that the soldier had previously elected to take it; but it throws on him the burden of showing that he could not obtain forage in kind. (1859) 9 Op. Atty. Gen. 334. Negligence or fault of owner or his agents.-- Where it is not shown that the safety of the horse was properly provided for by the keeper, who was a representative and agent of the owner, and for whose conduct and acts he is responsible, the paintiff is not entitled to re over. Sley c. U. S. (1914), 49 Ct. Cl. 242. 339. Payment for lost horses. * and payment in any case shall not be refused where the loss resulted from any exigency or necessity of the military service, unless it was caused by the fault or negligence of such officers or enlisted men. Sec. 1, act of June 22, 1874 (18 Stat. 193), amending act of Mar. 3, 1849 (9 Stat. 414). The act of Mar. 3, 1849, was embodied in R. S. 3482, ante, 338. By sec. 2, act of June 22, 1874, claims would not be considered if presented after Jan. 1, 1876. Notes of Decisions. Exigencies within this section.-Where a horse was killed on a Government transport it was an exigency within the statute; and where the horse was in charge of the agents of the Government and not of the owner it was not caused by his "fault or negligence." Hardie v. U. S. (1904), 39 Ct. Cl. 250. See also notes to 338, ante. 340. Claims for property lost while in military service.-Every person who sustains damage by the capture or destruction by an enemy, or by the abandonment or destruction by the order of the commanding general, the commanding officer, or quartermaster, of any horse, mule, ox, wagon, cart, sleigh, harness, steamboat or other vessel, railroad-engine or railroad-car, while such property is in the military service, either by impressment or contract; or who sustains damage by the death or abandonment and loss of any horse, mule, or ox, while in the service, in consequence of the failure on the part of the United States to furnish the same with sufficient forage, or whose horse, mule, ox, wagon, cart, boat, sleigh, harness, vessel, railroad-engine, or railroad-car is lost or destroyed by unavoidable accident while such property is in the service, shall be allowed and paid the value thereof at the time when such property was taken into the service, except in cases where the risk to which the property would be exposed was agreed to be incurred by the owner: Provided, It appears that such loss, capture, abandonment, destruction, or death was without any fault or negligence on the part of the owner of the property, and while the property was actually employed in the service of the United States. R. S. 3483. Notes of Decisions. Construction, operation, and effect in general. Government held not liable for loss of vessel in military service. Reybold v. U. S. (1872), 15 Wall. 202, 206, 21 L. Ed. 57. The cases in which contractors and owners of impressed property may recover examined. Powell v. U. S. (1865), 1 Ct. Cl. 400. The term war risk." in a policy wherein the Government is the insurer, can not he extended beyond "the acts of the public enemy or "the casualties of war." The Government does not insure against its own acts. Bogert v. U. S. (1866), 2 Ct. Cl. 159. Where property was in service by impressment or contract, and not merely by being a part of the equipment furnished by the officer or soldier, such claims are allowable under the provisions of this section, which contains no restrictions as to persons. (1874), 14 Op. Atty. Gen. 360. Where the question is whether the boat was or was not in the military service by contract, the distinction between a contract which imports the letting of the boat for hire (locatio rei), and one importing merely the carriage of goods for hire (locatio operis mercium vehendarum), is material; contracts of the former kind only being within the statute. (1875), 14 Op. Atty. Gen. 536. Proximate cause of loss.-It is the proximate cause of loss which determines the liability of the insurer, and not the remote. Hence, where the defendants during the war of the rebellion insure in the charter party of a schooner against the war risk," and she is driven by a gale within range of the enemy's batteries, but is then at anchor and safe from the perils of the sea, after which the batteries open upon her and destroy her ground tackle, so that she goes ashore and is captured, the acts of the enemy constitute the proximate ca of the loss, and the defendants are Baker r. U. S. (1887), 3 Ct. Cl. 76. Claims within this section.-One who eracted with the Government to transjort from port to port, remote from any at of war, stores and supplies not formnary portion of the stores or supplies of ar advancing or retreating army, is not a pen in the military service of the United States within this section and a petition ing attack and capture by hostile 1. 1 without fault of contractor is not Guttman v. U. S. (1873), 18 Wail 84, 21 L. Ed. 816. This section authorizes payment only for property lost in military service and does at apply to property lost by reason of day by order of army officers to prevent its reaching the enemy. U. S. v. Irwin 11888), 127 U. S. 125, 8 Sup. Ct. 1033, 32 L E 93. The United States held to be charterers of a vessel upon a contract of affreightrest, and not liable for its loss. Shaw v. TS. (1876), 93 U. S. 235, 239, 23 L. Ed. This act does not apply to the teams of A army contractor, since they are not in the service of the United States. Grant v. 8 (1563), 1 Ct. Cl. 61. Where a quartermaster, with the approval of his commanding general, detains contractor's ice barge, but enters into an agreement to deliver her at a certain Pace within a fixed period "or pay a fair Tation for the same," the Government wii be liable if the barge be not returned. Cord r. C. S. (1867), 3 Ct. Cl. 89. This section held not to apply to propery of a contractor in military service, and while so used under the control and manPorter 1ent of such contractor. v. What acts constitute impressment.-An order to the owners of a vessel to get her ready, under pain of impressment, to transport a cargo held not to make the Government owners for the voyage. Reed v. U. S. (1870), 11 Wall. 591, 601, 20 L. Ed. 220, reversing (1868) 4 Ct. Cl. 132. Where a vessel, which has gone to a Southern port during the rebellion with a cargo for the Government, is compelled, under protest, by a quartermaster to proceed to another port, but is not seized nor taken from the possession of the master and crew, she is " impressed "into the military service and is not "appropriated" within the meaning of act July 4, 1864 (13 Stat. 381); so that an injury suffered by reason of the impressinent is not "damage" done by the Army within the meaning of the last act. Kimball v. U. S. (1869), 5 Ct. Cl. 252. Horses which constitute a part of the equipment of officers and soldiers, furnished by themselves, are not in the military service by "contract," much less by "impressment," within the meaning of the term as employed in this section. (1874) 14 Op. Atty. Gen. 360. To make an impressment binding upon the Government it is essential that there be shown to have existed such an emergency as justified the officer in taking the property; but this, together with an actual taking, or what is equivalent thereto, being satisfactorily established by the claimant, nothing more remains to be proven by him under that head. (1875) 14 Op. Atty. Gen. 536. A threat to seize a vessel unless certain troops and ammunition are received and transported, resulting in the compulsory submission of the master of the vessel, does not constitute an impressment. (1881) 17 Op. Atty. Gen. 90. Voluntary navigation and control by owners of vessel. An owner, navigating his vessel through his own master and crew, can not recover for her loss by fire, although the vessel was in the military service of the Government by impressment, and the loss was without fault or negligence on the part of the owners or their representatives. The voluntary navigation of the vessel by the owners, after impressment, changes the character of the transaction from Impress ment to contract, and retaining control of her navigation takes the case out of the statute. Shaw c. U. S. (1873), 9 Ct. Cl. 388. In June, 1865, a steamboat was chartered by the Government to run on the Chattahoochee and Appalachicola Rivers, the management of the craft being left in harge of the owners. While under charter it was nccidentally lost by fire. Held, that the boat was not in the military service within |