
    CLARK’S CASE.
    Cyrus C. Clark v. The United States.
    
      On the Proofs.
    
    
      A paymaster’s safe is broken open and a package of money stolen toifhout fault or neglect on his pari. No one but himself knows the amount. He reports the amount immediately both to the commanding officer of the post and to his superior officer in the Pay Department. The robber is arrested and convicted by a military court, on the testimony of the paymaster, of stealing that amount. Me also charges the Government with the same amount in his official accounts, which exactly balances them. The accounts remain unadjusted for several years. Then the auditing-officers disallow this item, and suit is brought against the paymaster and his swreiies on their bond. He brings suit for relief under the Disbursing-officers Act. The defendants plead the statute of limitations.
    
    I. Where it is clearly shown that a loss occurred, for which a disbursing-officer was not responsible and with which he should not be charged, and that it is absolutely impossible to establish the precise amount of the loss by positive evidence, and the claimant has produced all the circumstantial evidence that the nature of the case admits of, the court will decree relief under the Disbursing-officers Act, (14 Stat. L., p. 44; Rev. Stat., § 1059,) for the amount which it is satisfied was actually lost.
    II. Statutes of limitation are intended for cases where one man may owe a debt to another which the latter neglects to prosecute within a reasonable time. They are for the protection of the debtor who cannot compel a suit against himself, and are applied against a creditor who has delayed to bring the controversy to a j udicial determination.
    III. If the Statute of Limitations (Rev. Stat., § 1059) extends to cases where a disbursing-officer is seeking equitable relief for lost funds, it does not begin to run until he “is held responsible” for the loss as indicated by the Disbursing-officers Act, (Rev. Stat., § 1059.) Inasmuch as he cannot bring a suit for relief until he be so “held responsible,” his claim for relief does not accrue when the loss occurs.
    
      The Reporters1 statement of the case:
    The facts appear in the following findings of the court:
    I. On the 6th April, 1865, the claimant lost, by robbery while in the line of his duty as assistant paymaster in the Army at Franklin, Tex., a package of Government funds. The package was in his official safe at his quarters, and the loss was without fault or neglect on the part of the officer.
    
      II. The claimant, after duly reporting the loss, and making known the facts to his superior officers, credited himself in his next account-current as follows: “ Amount lost by robbery of safe at Franklin, Tex., $15,979.87.” This item of credit was not acted upon by the accounting-officers of the Treasury until the final revision of his accounts, on the 6th November, 1871, when it was disallowed, and charged to him as a balance on hand.
    III. The robbery was committed in the day-time, by forcibly breaking into the claimant’s quarters, during his temporary absence, and then forcibly breaking into the Government safe, in which the funds were. Two persons were apprehended and tried by military commission held at the headquarters of the Department of New Mexico, on the 5th June, 1865. On the trial the claimant was a witness, and testified as to the amount of the funds stolen. The commission found the prisoners guilty, and the proceedings of the commission were duly approved, and the sentence of the commission carried into effect.
    The claimant, at the time of the robbery, had no clerk or assistant. It appears, from other testimony, that a package of money was in the safe, but the precise amount thereof was known to no person but the claimant. He was of good character, personally'and officially, and had always kept regular and exact accounts of the funds in his official custody, and had made due returns in regard to, and properly accounted for, the same. He immediately reported to his superior officers that the funds in that safe were $15,979.87, which was the amount of the loss appearing on his subsequent official reports, and charged against him as deficiency on the fipal revision and settlement of his accounts by the accounting-officers of the Treasury.
    IY. On the 17th February, 1873, a suit was instituted by the United States, in the circuit court of the United States for the first circuit, on the official bond of said claimant, which suit is still pending, to recover the sum of $20,000, claimed to be due from him thereon.
    
      Mr. Charles E. Pilce for the claimant.
    
      Mr. Joseph K. MoCammon (with whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered the opinion of the court:

It is unquestioned in this case that a loss occurred, that the loss was without fault or neglect on the part of the officer, and that no suspicions of fraud or collusion in the slightest degree cloud the claimant’s case. Two points, however, have been raised, which have received the serious attention of the court.

The first of these is, that the amount of the loss has not been positively proven. It has been shown by evidence that a package of money was in the paymaster’s official safe, and that the safe was broken open and the package stolen; that the paymaster had counted and assorted those packages the day previous to the robbery ; that he had no clerk or assistant at the time; and that no person save himself was cognizant of the amount of money which those packages contained. If a disbursing-officer were a competent witness for himself in such a case, this omission might be supplied in legal form. But it was determined in Christianas Case (7 O. Cls. R., p. 431) that he cannot be a witness on his own behalf to prove the contents of a captured package, being debarred both by the statute (Rev. Stat., 1079) and the common law. Two things, however, have been indisputably shown: first, that a loss occurred for which the claimant was not responsible and with which he should not be charged; second, that it is absolutely impossible to establish the precise amount of the loss by auy positive proof. The resulting question on such facts is: Did Congress intend that an officer thus circumstanced should be charged with the full amount of the loss"!

To answer this question in the affirmative would be to say that the remedy provided by the Disbursing-officers Act is practically worthless, and that Congress really intended that the disbursing-officers of the Covernment shall be answerable for losses over which they have no control, and which no amount of human foresight could guard against. Disbursing-officers, from the nature of their official duties, must ordinarily be the only persons cognizant of the amount of public moneys in their possession. It would be official negligence were they to intrust the counting and assorting of such funds to unofficial hands; and were they to call in third persons, for their own protection, to witness the amounts in their possession, it would be a dangerous practice, inviting the robbery of large amounts, and vio-Iating all approved ideas of official prudence. Undoubtedly, tbe more completely a disbursing-officer conceals the amount of moneys in his hands, the more circumspectly he conducts his official business.

It appears in this case that the officer had funds in his possession to an amount exceeding those lost; that immediately after the robbery he notified the commanding officer of the post of the amount of money which was in the rifled safe ; that he then reported the amount of the loss to his superior officer in the Pay Department; that he testified to it on the trial of the robbers, and that he charged it on his subsequent official returns and accounts. It also appears that he was a person of good personal and official character; that all of his returns and accounts had been accurate and free from error or suspicion, and that the amount claimed to have been lost was the only deficiency that occurred in his accounts after several years of service. If there were any other item of evidence which from the nature of things could be supplied, the court would require it to be produced, or throw the responsibility of its omission upon the claimant. But upon the facts proved we feel satisfied that this amount of funds was actually stolen, and that within the legislative intent an officer thus situated should receive a credit for that amount.

It is also to be noted that the statute does not require specific proof of the amount. After providing for the jurisdiction of the court in the first section, it goes on to say in the second, “ That whenever said court shall have ascertained the facts of any such loss to have been without fault or neglect on the part of any such officer, it shall malee a decreeThese aré, indeed, all the “ facts” which the court is specifically required to “ ascertain.” When these are ascertained, it is required to make a decree “ setting forth the amount thereof; upon which the proper accounting-officers of the Treasury shall allozo to such officer the amount so decreed as a credit in the settlement of Ms accounts.” Congress manifestly intended that when, in a case like this, the main facts were ascertained of a loss on the one hand, and of freedom from fault or neglect on the other, the court should be as untrammeled as possible in setting forth ” in its decree the amount, which should not be left to the discretion of the auditing-officers.

The second objection which has been raised by the counsel for the Government is the statute of limitations. Briefly stated, the facts upon which this objection to the case must be decided are these: The loss occurred in April, 1865; the claimant credited himself with the amount, i. e., he charged the loss to the Government in his next account-current; this item of credit was not acted upon by the accounting-officers of the Treasury until the final revision of his accounts on the 6th November, 1871; and on the 12th April, 1873, the claimant brought this suit. The suit, therefore, was brought more than six years after the loss occurred, and less than six years after the item of loss or claim for credit was charged to the claimant at the Treasury.

The statute of limitations uses the word “ claim,” when defining the subjects as to which a suit may be barred by lapse of time, and the Disbursing-officers Act also uses the word u claim ” when defining the subject as to which relief may be sought un.der its provisions. But the statute of limitations forms a part of the Amended. Court of Claims Act, (12 Stat. L., 765, § 10,) and that act existed before the Disbusing-officers Act, and the word “ claims ” in it has been defined by the Supreme Court’ to mean a money-demand on contract, (Alire's Case, 7 O. 01s. B>., p. 28.) It is not to be doubted^that subsequent subjects of jurisdiction would be subject to the provisions of the statute of limitations if they were in the nature of money-demands against the Government. But in the case now before us there is no debt owing from the Government to the claimant, and uo money-demand asserted by the claimant against the Government. All the world over, statutes of limitation are intended for cases where one man may owe a debt to another, which the latter has neglected to prosecute within a reasonable time. They are intended for the protection of the debtor, who cannot compel a suit against himself, and are applied against the creditor, who has purposely delayed to bring the controversy to judicial determination. In this case, if there be any debt owing it is from the claimant to the Government, and the anomaly is that it is the creditor who has had a cause of action which might have been asserted at any time, who is insisting that the statute of limitations should exclude a decision upon the merits. It is evident here that the Government does not occupy the position of a debtor, and that it might have forced a judicial determination of the controversy at any time after the loss, by bringing suit against the claimant upon the only existing canse of action. In view of these facts, and of the decision of the Supreme Court in Alire’s Case, we are inclined to hold that the statnte of limitations is not applicable to this class of cases, and that the purpose of the Disbursing-officers Act was merely to secure the judicial ascertainment of a fact pending the settlement of an officer’s accounts at the Treasury, so as to inform the accounting-officers, who have no means for the ascertainment of such i'acts, whether or not a particular credit should be allowed to the party. In harmony with this conclusion is the decision in Hall’s Case, (9 C. Cls. R., p. 270,) where it was held that if a disbursing-officer under compulsion pays over a deficiency found against him by the auditing-officers, and his account at the Treasury is settled and closed, it is too late for him to seek relief under the act; that the act limits such relief to losses “/or which such officer was and is held responsible.” Now, if the doctrine which the Government successfully maintained against a disbursing-officer in that case be law, and if the doctrine which it is now asserting against another disbursing-officer in this case be also law, it is apparent that disbursing-officers will not have the six years which the statute gives to creditors of the Government wherein to bring suits for relief, nor any definable time, and that, on the contrary, the Government will have the power to cut this period short whenever its officers think proper so to do. It does not seem consonant with the spirit of just legislation to say that Congress intended to impose the disability of the statute of limitations, and, at the same time, withhold the period which it expressly gives to those upon whom its disability may fall.

A decree will be entered, in the usual form, directing the proper accounting-officers of the Treasury to allow to the claimant, as a credit in the settlement of his accounts, for funds stolen from him at Franklin, Tex., April 6,1865, the sum of $15,979.87.

Richardson, J., was absent when this case was decided, but took part in the consideration, and was of the opinion that judgment should be for the defendants, on the ground stated by him in Holman’s Oase, (ante.)  