
    MARIE E. MUMFORD v. THE UNITED STATES.
    [No. 18554.
    Decided March 16, 1896.]
    
      On the Proofs.
    
    The claimant’s husband serves in the Mexican war and dies in 1872. In 1879 Congress pass an act which entitles a widow to three months’ extra pay, which her husband might have received if living. The accounting officers state an account against the deceased officer crediting him with the three months’ extra pay and with an unpaid balance of pay proper, but apply both to an amount due from him to the Government. The widow neglects to bring her suit until August 6, 1894.
    I.The common-law principle, that a naked promise without consideration is not sufficient to create a cause of action, has no application to grants of money by statute. The disposition of public money is in the discretion of Congress, whose reasons can not be inquired into by executive officers or by the courts.
    II.A claim accrues within the intent of the statute of limitations, when the act making the grant passes.
    III. Money granted to a widow by statute can not be set off against an indebtedness due from her husband to the Government.
    IV. An account stated by the accounting officers in which they refuse to allow to a widow money awarded to her by Congress and credit it upon an indebtedness due from her husband, is neither an award nor a refusal to pay over money held in trust.
    V.A balance due to a deceased military officer upon his pay account becomes on his death part of his personal estate and may be set off by the accounting officers upon an indebtedness due from him to the Government.
    
      The Reporters’ statement of the case:
    The following are tbe facts of the case as found by the court:
    I. The claimant is the widow of Ferdinand S. Mum ford, who served in the war with Mexico as a captain in the First Regiment of United States Infantry, and as such served out the term of his engagement, and died October 1, 1872.
    II. After the passage of the Act of February 19, 1879 (20 Stat. L., 316), the claimant presented a claim to the accounting officers of the Treasury, upon which was taken the action shown by the following letter:
    “Treasury Department,
    “Second Auditor’s Office,
    “ Washington, D. C., October 19,1888.
    
    “Mrs. Mary [Maria] E. Mumford,
    “ Sacramento City, Gal.
    
    “Madam: I have the honor to inform you that your claim for arrears of pay and three months’ extra pay in the case of F. S. Mumford, late captain First Infantry, has been adjusted by settlement No. 81032, confirmed by the Second Comptroller October 13,1888, as follows:
    Pay as captain has lieeii allowed for the month of August, 1849... $102.90 Also 3 months’ extra pay for services in the Mexican war. 120. 00
    Total. 222.90
    “This amount has been passed to the credit of Captain Mumford as a partial set-off to a balance of $1,045.16 declared to be due the United States by settlement No. 10042, March 30, 1850, which leaves a balance still due the Government of $854.11.
    “ Bespectfully, yours,
    “ J. B. Caldwell,
    
      “Acting Auditor.
    
    “By T. R.”
    Upon the foregoing findings of fact the court decided as conclusions of law:
    1. As to that part of the claim which is for extra pay, granted to the claimant by statute, the petition is dismissed for the sole reason that it was not presented within six years after it first accrued.
    2. As to that part which is for actual services of the husband during his lifetime, the petition is dismissed because it never accrued to the claimant.
    
      Mr. George A. King for the claimant relied on the case of temple, 24 O. Ols. R., 422.
    
      Mr. Charles W. Bussell (with whom was Mr. Assistant Attor. ney-General Dodge) for the defendants:
    This being a donation, as held in Semple v. United States (24 C. Cls. R., 423), it is not clear that a widow whose husband died before 1879 was given anything by the terms of that act.
    
      In tbe second place, this court seems to us to have no authority to interfere with the Secretary of the Treasury in this matter. Congress has not authorized this court to act as an appellate court or to dictate to the Secretary what he shall decide or do in this matter. It is given exclusively to him to hear evidence upon and to decide and act upon. Suppose a case where he is not satisfied that payment was not previously made, and the court is satisfied, is he to submit to the judgment of the court or follow the act of Congress and refuse payment1?
    In the third place, the statute of limitations, particularly in view of the Semple Case, holding these moneys to be donated to the widow directly and not as a representative of the soldier’s rights, effectually bars this claim.
    The widow’s right to sue for this money, if it exists now, existed in 1879 and has ever since existed. The debt of the soldier to the Government has nothing to do with the matter one way or the other. He is as foreign to her as the deceased husband of some other woman. His name is mentioned as part of the description person® — that is all.
    The opinions of the court in exceptional cases — Scott v. United States, 18 C. Cls. K., p. 1, and Hobbs v. United States, 17 C. Cls. K.., 189 — are as irrelevant as the rights, or debts of William Mumford, deceased.
    
      Mr. King in reply:
    In regard to the first two of defendants’ objections, the mere citation of the case of Semple v. United States (24 C. Cls., 422) is a sufficient answer. It was there ruled—
    1. That the widow was entitled to the benefits of the act in her own right — the provisions of the Act of 1848 (9 Stat. L., 248) to that effect being made a part of the act of 1879 by the provision for payment under a the limitations contained in said act.”
    2. That a debt due from such an officer is not a subject of set-off against the widow’s right to the three months’ extra pay.
    Nothing more need to be said on either of these points unless the court shall deem it advisable to review its decision in the Semple Case, in which event counsel will request leave to submit a somewhat more amplified argument in maintenance of the correctness of the decision in that case.
    
      The third point was not involved in the Semple Case, bnt lias been in at least two other cases which have come before the court.
    The point was directly involved in the case of Central Pacific Railroad Go. v. United States (24 O. Cls., 145). It was there held that where the accounting- officers had improperly deducted certain sums from an account for a conceded balance for services rendered, the limitation did not run from the date of the original rendition of the services, but from that of the improper deduction from the amount of the claim.
    The question again came up in the case of' William S. Rose-erans v. United States (No. 16627), a case long and seriously contested both upon the facts and the law, and which, therefore, may properlybe cited as a precedent upon any point ruled therein, although no opinion was delivered by the court.
    It was said in the brief of the claimant:
    “Whenever from the amount of a settled and ascertained account a sum previously paid to a party is deducted, no limitation runs against a claimant till the date of such deduction. (Central Pacific R. R. Co. v. United States, 24 O. Cls. R., 145.) The improper deduction was made in this case on the 27th of February, 1889, and this suit was instituted on the 23rd of May following. The claimant is therefore entitled to judgment,” etc.
    Anil judgment was rendered accordingly for the amount asked for in the brief, and a motion for new trial refused.
   Richardson, Ch. J.,

delivered the opinion of the court:

That part of the claim for the three months’ extra pay-granted'to the claimant on account of her husband’s honorable service in the Mexican war is small and exceptional!/ meritorious, but we are constrained to decide against it on the strict rules of law.

It is also identical in principle with that of Semple (24 C. Cls. R., 422), in which judgment was given for the claimant* and the defendants acquiesced and took no appeal.

The claimant is the widow of an officer engaged in the military service of the United States in the war with Mexico as captain in the First Regiment of Infantry, who served the time of his engagement, was honorably discharged, and died October, 1872.

Tbe claim for said extra pay is founded on the following acts of Congress:

“ Sec. 5. And be it further enacted, That the officers, non-commissioned officers, musicians, and privates engaged in the military service of the United States in the war with Mexico, and who served out the term of their engagement, or have been or may be honorably discharged—

“ And first to the widows,

“ Second to the children,

“ Third to the parents, and

“ Fourth to the brothers and sisters

“Of such who have been killed in battle, or who died in service, or who, having been honorably discharged, have since died, or may hereafter die, without receiving the three months’ pay herein provided for

“Shall be entitled to receive three months’ extra pay:

“Provided, That this provision of this fifth section shall only apply to those who have been in actual service during the war.

“Act of July 19, 1848, sec. 5, ch. 104 (9 Stat. L., 248).

“Be it enacted, die., That the Secretary of the Treasury be,' and he is hereby, directed, out of any moneys in the Treasury not otherwise appropriated, to pay to the officers and soldiers engaged in the military service of the United States in the war with Mexico, and who served out the time of their engagement or were honorably discharged,’ the three months’ extra pay provided for by the act of July nineteenth, eighteen hundred and forty-eight, and the limitations contained in said act, in all cases, upon the presentation of satisfactory evidence that said extra compensation has not been previously received:

“Provided, That the provisions of this act shall include also the officers, petty officers, seamen, and marines of the United States Navy, the Revenue-Marine Service, and the officers and soldiers of the United States Army employed in the prosecution of said war.

“Act of February 19, 1879, ch. 90 (20 Stat. L., 316).”

On the art of the defendants, it is contended that the court is without jurisdiction of the claim for extra compensation, because the Act of March 3,1887, chapter 259 (1 Supp.to Rev. Stat., 2d ed., p. 559, and 24 Stat. L., 505), commonly called the Tucker Act, limits the jurisdiction of the court to claims “in respect to which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty, if the United States were suable.” As this three months’ extra pay is a gratuity, it is argued that the grant is without consideration and that the United States is not liable for it, on tbe principle of tbe common law that a naked promise, without consideration, to pay money is not sufficient to create a cause of action.

In our opinion this common-law principle has no application to grants of money by statute. The disposition of public money is in the discretion of Congress, and its reasons for passing an act and the consideration thereof can not be inquired into nor its will thwarted by any executive officers or by the courts. (Jordan’s Case, 19 C. Cls. R., 108, affirmed on appeal 113 U. S., 418; Price’s Case, 116 U. S., 43, reaffirming the Jordan decision.)

In addition to the several defenses on the merits in the Semple Case, which was decided against them, the defendants here set up the statute of limitation not involved therein. The court is of opinion that this point is well taken and that the claimant is not entitled to recover for the sole reason that she did not seasonably bring her action.

Upon the passage of the act of February 19, 1879, her claim accrued and she might have brought her action at any time within six years thereafter. The.j>etition was filed August 6, 1894, when her claim was barred by the statute of limitation. (Rev. Stat., sec. 1069.)

On the part of the claimant it is argued that the statute did not begin to run until she had demanded payment at the Treasury Department, had presented her evidence, and the Department had acted thereon. The findings show that the action of the Department took place October 19, 1888, when her claim was allowed for the three months’ extra pay by statute as well as for one month’s pay for the services of her husband while he lived, and the same were both set off against a claim found due from her husband to the defendants. There is no doubt that the amount granted to the widow by statute as a gratuity could not be set off against an indebtedness of her husband, and that the accounting officers were mistaken in so stating the account.

It is urged that the words, “That the Secretary of the Treasury be, and is hereby, directed, * * # to pay * * * upon the presentation of satisfactory evidence that said extra compensation has not been previously received,” created a condition precedent to her right of action which did not accrue until she had presented such evidence. In this we can not con cur. Whether or not she had previously received this extra compensation must be a matter of record in the Department within the exclusive control of the Secretary of the Treasury. What other evidence of nonpayment could the claimant have furnished to prove a negative? In point of fact she never did present any. Had she brought an action at once upon the passage of the statute, as she might have done, the reply to a call on the Secretary of the Treasury for information under Eevised Statutes, section 1076, would have disclosed the fact that no payment had previously been made, and no evidence on her part would have been necessary. In this respect the case essentially differs from those in which the court has decided, in special cases, that money was held in trust for claimants until they demanded payment. (Taylor’s Case, 14 C. Cls. R., 340, affirmed 104 U. S., 221; Wayne’s Case, 26 C. Cls. R., 274; Harris’s Case, 27 id., 180.)

If the account stated by the accounting officers of the Treasury were an award, as urged by the claimant, her claim in both its parts first accrued at that date and her petition was duly filed in time, but it has been repeatedly held that the accounts stated by those officers do not constitute awards, nor are they even prima facie evidence. We see nothing in the facts and law of the present case to distinguish it from those wherein it has been so held. (McKnight’s Case, 13 C. Cls. R., 292, affirmed on appeal 98 U. S., 179; Longivill’s Case, 17 C. Cls. R., 288; Jones’s Case, 18 Howard, 92, cited in Waters’s Case, 21 C. Cls. R., 38; Mississippi Central Railroad Case, 23 C. Cls. R., 27; Pennebaker’s Case, 21 id., 41.)

That part of the claim for the services of her husband during his life accrued to him and on his death became part of his personal estate, to be collected by his executor or administrator or set off against his own indebtedness, as was rightly done by the accounting officers.

Besides, the claimant does not sue as executrix or adminis-tratrix, but in her own right, and therefore if for no other reason she could not recover.  