trial, there is no sufficient evidence upon which a jury would be authorized to find a verdict against Freeman, the other defendant. The acts done by him had no other connection with those of the other defendants, by which the plaintiff alleges he was injured, than necessarily arose from the fact that the performance of his official act as Marshal of the United States was the cause or occasion which rendered it necessary, in the judgment of the mayor, to call out the military force to prevent a threatened disturbance of the peace. But Freeman cannot, on this ground, be held answerable for the orders and acts of the mayor and the military force in preserving the peace of the city.

It follows, that the question whether the military force were legally and properly called out cannot be drawn into controversy in this case. That was conclusively settled by the action of the mayor in issuing his precept according to the provisions of the statute, and thus the only questions as to the remaining defendants, Smith, Edmands, and Evans, are, whether specific orders were given by the mayor for the clearing and guarding the streets on the second day of June, 1854, and if so, whether any of the defendants acted unreasonably, or exceeded the just limits of the authority vested in them by law.

Of course, the question whether the acts charged in the declaration were the result of the orders given for the suppression of a riot, or were the result of a sudden outbreak, in which any of the defendants acted upon his own responsibility, will be open, to be determined upon the familiar principles applicable to actions of trespass upon the person. The defendants cannot be held for the unauthorized acts of others, done without their authority, and not coming within the fair scope of the orders given by them. The defendants Smith and Edmands will not be liable to the plaintiff for any force and violence used upon him, beyond that which was necessary to carry into effect the order for clearing and guarding the streets, even if such order was not legally given, according to the rules and principles above stated. Not having been present at the alleged assault, they cannot be held liable for any unauthorized violence of their soldiers. The same rule would apply to Evans, if he did not authorize or participate in the alleged violence offered to the plaintiff.

Accordingly, the court ordered the case to stand for trial. J. P. Hale and C. M. Ellis, for plaintiff.

R. Choate, B. F. Hallett, and G. S. Hillard, for defend

ants.

Notes of Cases in United States Court of Claims. 621

Notes of Cases in United States Court of Claims.

WARD V. THE UNITED STATES.

Presumption of the due appointment of a public officer.

The Continental Congress, in 1776 and 1777, passed resolves to borrow money on loan office certificates of the United States, and that a loan office be established, for that purpose, in each of the States, and a commissioner to superintend such office be appointed by the States respectively, and that the commissioner of one of the loan offices should countersign the certificates. The petitioner alleged himself the legal holder of forty-three such certificates, dated December 23, 1777, payable December 1, 1781, with interest annually at six per cent. At the bottom of each was, "Countersigned by order of J. A. Trenslen, Governor of Georgia. E. Davis, Jr." Endorsed was the payment of four years interest to December 23, 1781, by the continental treasurer.

It was shown that the treasurer of the United States was duly authorized, while the State of Georgia was in the hands of the enemy, to pay interest on the certificates issued from the office in that State; that in 1792 the secretary of the treasury reported to Congress that no evidence had been obtained of the appointment of E. Davis to the office of commissioner of loans for Georgia, and that the department, apparently for this reason, had, since 1792, refused to pay certificates like these in question. It appeared, however, that such certificates had, at some time, probably before 1792, been taken up and cancelled at the treasury.

Held, that as Davis appeared to have come into possession of these certificates from the governor of the State, and to have issued them for value, and as the interest on these certificates, and both interest and principal of others similar, had been paid by the treasurer of the United States while the transactions were recent, without objection, it was to be presumed that the issue was regular, and that Davis was the loan commissioner, although not so described; and that these certificates must be presumed a just debt against the United States.

FERGUSON, ADM'R. v. THE UNITED STATES.

"Value" of goods appraised after seizure.

The act of Congress entitled "An act to regulate the collection of duties on imports and tonnage," approved March 2, 1799, provides that if any goods which shall have been entered, shall be wrongly invoiced, with design to evade the duties, they shall be forfeited; and that of the goods, or their value, so forfeited, one moiety shall be for the use of the United States, and the other shall be divided between the collector, the naval officer, and the surveyor. Any claimant of goods seized may, by applying to the court, have

622 Notes of Cases in United States Court of Claims.

the goods appraised, and give bonds to the United States for their value, to be forfeited in case judgment goes against him, and thereupon and after producing a certificate that the duties have been paid, may take the goods. Certain wool imported into New York in 1851, was seized, and delivered to the importers on a bond as above provided. The importers also paid the duties, and then abandoned the suit, and paid the appraised value of the goods. The petitioner's intestate was one of the officers entitled to share in the forfeiture, and was paid his proportion of the appraised value of the goods. The petitioner claimed in this action a similar share of the duties paid to the United States.

Held, that the value of the goods was to be ascertained at the place of importation, and that the appraisers would be presumed to have considered the increase in value which the payment of duties would occasion; it appearing also, in fact, by computation, that the appraisers in this case must have considered such increase. And that neither as duties, nor as forming part of the value of the goods, could the petitioner recover from the United States any part of the duties.

BOYLE, ADM'R. v. THE UNITED STATES.

Clerk of department entitled to pay for extra services not clerical.

The petitioner's intestate was for many years chief clerk of the navy department, and regularly received his salary as such, during the whole period; he also at various times acted by appointment of the president, as secretary of the navy, ad interim, during the illness or absence of the secretary. The statutes authorizing the president to appoint persons to perform, temporarily, the duties of secretary of a department under such circumstances, were passed before the office of secretary of the navy was created, the department of war then having charge of that branch of the public service.

Held, that the beneficial provisions of these statutes might fairly be extended to the navy department, especially as such had been the uniform practice of the government.

The act regulating the pay of clerks in the public offices, does not prohibit a clerk from receiving compensation for services properly performed by him in another capacity, as that of secretary ad interim, but only for any services he may render in any way, as clerk.

The office of secretary ad interim is a separate office from that of secretary, the two being analogous to those of principal and deputy, and the secretary ad interim is an inferior officer, within the meaning of the constitution, and Congress may, therefore, without infringing the constitution, vest the appointment of such an officer in the president, without the advice and consent of the Senate.

The office is a public office, and the person filling it is entitled

Notes of Cases in United States Court of Claims. 623

to compensation; which should be at the rate of pay established for the secretary of the navy.

BERRYMAN V. THE UNITED STATES.

Slave trade- Distribution of proceeds of captured slaver.

By the act of May 10, 1800, vessels employed in the slave trade may be seized by any of the commissioned vessels of the United States, and proceeded against in any District Court, and condemned for the use of the officers and crew of the vessel making the capture, the proceeds to be divided in the proportion directed in the case of prize. In cases of prize, the provision is that if the captured vessel was of equal or superior force to that of the captors, the whole proceeds go to the latter, but if inferior, shall be equally divided between the United States and the captors. By the act of March 3, 1849, all prize money arising from captures made by vessels of the navy is to be paid by the marshal into the treasury of the United States, and such parts as belong to the officers and crew of the vessels of the navy shall be paid to them under the direction of the secretary of the navy.

The petitioners were the officers and crew of a public armed vessel, which captured a slaver in 1848. The captured vessel was brought into New York, and proceeded against in that district, and condemned in July, 1849, and sold. It would seem that the marshal did not pay the proceeds into the treasury. In 1851, upon the application to the District Court by the present petitioners, for a decree of distribution, the case was referred to a commissioner to report the sum remaining for distribution, the persons entitled as distributees, and the sum due to each. The commissioner reported the sum to be distributed as $20,664.69; that in his opinion the United States were entitled to one half thereof, because the vessel captured was of inferior force to that of the petitioners; that the fund must be considered as in the treasury, and would undoubtedly be paid out, by the proper authority, in accordance with the decree of distribution. The report also found the sum due to each distributee. The court confirmed the report, and ordered distribution accordingly, and the decree has never been reversed.

Held, that the decree of the District Court is final and conclusive as to all matters within the jurisdiction of that court, namely, the condemnation of the vessel; the amount of the fund; and that it was to be considered as paid into the treasury. But that the distribution among the petitioners was by the statute left with the secretary of the navy, and the decree upon that subject was not binding. A bill was reported to pay the sum of $20,664.69 out of the treasury, to be distributed among the officers and crew of the capturing vessel, in such proportions as shall be designated by the secretary of the navy.

Notes of Cases in Vermont.

Franklin County. Supreme Court. January Term, 1857.

HUNT ADMR. v. PAYNE.

Administrator.

The administrator de bonis non, may recover in debt, or scire facias, upon judgment, in favor of former administrator, as he may sue, as administrator, upon all contracts which, when recovered, will be assets, whether made with the intestate, or with the administrator as such.

HUNT ADMR. v. PAYNE.

Evidence-Condition.

This is ejectment for certain lands devised to the defendants upon condition, that they maintain and comfortably support the testator's parents during life. The plaintiff gave no evidence of the non-performance of this condition, except the former recovery of the lands in ejectment in favor of the executor. And no evidence was given of the performance of the condition.

Held, that the former recovery must be presumed to have been for non-performance of the condition in the devise, and is sufficient prima facie, to entitle the administrator to recover. And that after the former recovery, the defendant's estate, at law, was gone, and they could only be restored to it, by a proceeding in equity, in the nature of a bill to redeem.

MORROW v. WILLARD.

Deed Construction.

In the present case, a question was raised in regard to the division line between plaintiff's and defendant's land. Both parties derived title from the same person, who described plaintiff's land, both in the deed to him, and in the exception to the description of

defendant's land.

Held, that both descriptions might be taken into consideration, in determining the division line, as part of the same transaction, although not executed at the same time, and having no other connection, except as coming from the same person, and intending to