
    James Christian v. The United States.
    
      On the Proofs.
    
    
      A commissary during the war receives moneys from t.he sale of captured property which he charges himself with in his returns. Saving no safe or secure place of deposit and being ordered to another post, he places the moneys in axoaekagc whieh he deposits in the safe of certain merchants in Laivrenae, one of whom is his hondsman, and has knowledge of the contents of the package. Their warehouse is plundered in the Quantrell massacre, the package lost, and the partner cognizant of its contents killed. No other person has knowledge of the contents, and the commissary offers himself as witness to prove that the package contained the moneys received by him officially from the sale of the capturedproperty.
    
    I. A commissary 'bringing a suit for relief from responsibility on account of losses by capture under tbe Disbursing officers Act, (14 Stat. L., p. 44,) cannot be a witness on bis own bebalf to piro ve the contents of the captured package, or the amount of the captured funds. Tl.e exception of the common law by which a party is allowed to testify his own behalf, ex necessitate rei, because his is the only testimony that the circumstances admit of being furnished, is confined to cases where the defendant is a wrong-door; as a common carrier who has plundered goods intrusted to him. It cannot be extended to a suit against tbe Government where the defendant is not in fault.
    II. In a suit for relief from responsibility on account of losses by capture under the Disbursing officers Jet, (14 Stat. L., p. 44,) circumstantial evidence, it being all that the circumstances of the case admit of, supported by evidence of the officer’s good character, is sufficient to establish the amount of the funds otherwise shown to have boon captured.
    
      Mr. G. Ingle for the claimant:
    This cause is founded upon the act of Congress of May 9, 1866, (14 Stat. L., chap. 75, p. 44,) which confers upon this court jurisdiction to hear and determine the claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States for relief from responsibility on account of losses by capture or otherwise, while in the line of his duty, of funds in his charge, as such officer; and to ascertain and decree whether or not such loss was without fault or neglect on the part of such officer, and the amount thereof.
    The petitioner was an officer in the United States Army during the rebellion. He acted as commissary of subsistence and additional quartermaster, but never received any compensation for bis services in those capacities. In his returns to the Government he acknowledges the receipt, as such quartermaster, of the sum of $2,048.58, the proceeds of a sale of con traband stock, which he never receipted for, and with which he was not charged. Not having any safe place of deposit, he kept this money in the iron safe of II. S. & L. Fillmore, of Lawrence, Kansas. Lemuel Fillmore, one of the membefs of that firm, was one of the sureties in the petitioner's official bond.
    About the 1st of July, 1863, petitioner was ordered from Lawrence to New Madrid, Missouri. Shortly afterward, in petitioners absence, Quantrell made his raid upon Lawrence; Fillmore’s-store was sacked and burned; Fillmore himself (the only person who would have been a competent witness to prove the amount of petitioner’s loss) was killed; and the Government funds in charge of petitioner were captured or destroyed.
    The petitioner has applied to the Treasury Department to be allowed credit in the settlement of his accounts for the said sum of $2,048.56 so lost by him while in the line of his duty; but the Department has decided that he must seek relief through this court, under the above-mentioned act of Congress.
    The evidence in tlie case fully sustains all the allegations of the petition, which, under the general rules of evidence and the decisions of this court, require proof.
    The fact of the raid by the public enemy is matter of public history, and is also proved by all the witnesses.
    It appears that the petitioner is a strictly honest and honorable man — a man above reproach in the community. Petitioner was an old resident of Lawrence.
    The presumption in petitioner’s favor, growing out of the fact that he, though standing on debatable ground, stuck to the old flag, is corroborated by the evidence:
    Petitioner’s account-current ascertains the amount of the loss. In the case of Glenn v. United States, (4 0..01s. It., 501,) a case on all fours with this, it was objected that the petitioner’s account-current was not competent evidence of the amount of the loss; but this court unanimously overruled that objection.
    It is not to be x>resumed that this petitioner, when ordered off to active duty in the field, carried with him the whole or any portion of the amount with which he had voluntarily ■charged himself in his returns.
    
      The loss was without fault or neglect on part of the petitioner. Having no place of safe-keeping himself, he deposited his cash in the very place which it was most appropriate for him to select for that purpose — the iron safe of one of his bondsmen.
    Petitioner could not have anticipated the inroad of the public enemy. This court does not require “ that disbursing officers shall be gifted with prescience.” (Glenn v. United States, 4 C. Ols. R., 506.)
    The deposition of petitioner filed in the case is competent and admissible, ex necessitate. (See Sedgwick on Damages, ch. 25, pp. 587, 589, and cases cited in notes; Boyle v. Kiser, 6 Ind., 242;) The Mad River and Bake Brie Railroad Company v. Fulton, 20 Ohio, 318; Taylor v. Monnot, .1 Abbott’s (N. Y.) Pr. R., 325; S. 0., 4 Duer, 116; Redfield on Carriers, part 3, ch. 11, sec. 452, and notes; 1 Greenleaf Bv., sec. 102; Redfield on Carriers, part 2, ch. 8, sec. 88, et seg.; 12 Yiner’s Ab., 24, pi. 34.
    This is the common-law rule. The act of June 25,1868, sec. 4, simply repealed the act of March 2, 1867, ch. 166, sec. 2, (14 Stat. L., 457,) and restored that rule of the common law.
    2. In Glenn v. United States, (4 C. Cls. R., p. 501,) it was held that the petitioner’s account-current was not only competent evidence, but was also, of itself, full and sufficient proof of the amount of the loss. There was no other evidence in the case.
    3. The statute under which this petitioner claims is a beneficial and enabling statute, and has always been liberally and benignly administered by this court in favor of the claimant. See the cases collected in 2 C. Ols. R., 519, 528.
    
      Mr. Alexander Johnston (with whom was the Assista/nt Attorney-General) for the defendants:
    . The claimant was a captain and acting assistant commissary of subsistence at Paola, Kansas, in April, 1863. On the 8th day of April Major-General James G. Blunt, commanding the district of Kansas, issued the following order:
    [Special Orders No. 69. — Extract.]
    “ Headquarters District oe Kansas, “Fort Leavenworth, April 8,1863.
    * * & * • *
    “ III. Captain James Christian, commissary of subsistence at Paola, will, on tbe arrival of Colonel Lynde at tlie latter place, turn over all commissary stores and other Government property in his hands to the quartermaster of the Ninth Kansas Volunteers; having done which, he will report in x>erson to these headquarters.
    “By command of Major-General Blunt:
    (Signed) “ H. G. BOEING,
    “ Captain and A. A. A. General.”
    I. There is no proof that the claimant lost, by capture or. otherwise, the sum of $2,048.56. The only testimony offered to prove any sum at all is the report from the Quartermaster-Generals Office that the claimant is charged with $2,048.56. This may be so, and every word of the testimony in the case may be true, and yet Christian may have this money in his pocket.
    II. It was Christian’s duty to turn the money over to the regimental commissary of the Ninth Kansas Volunteers. This is what he was ordered to do by General Blunt. The order of the 8th April directed him “ to turn over all commissary stores and other Government property in his hands to the quartermaster of the Ninth Regiment Kansas Volunteers.” This order should have been carried out by Christian before he left Paola.
    III. Neither the claimant nor his money had any business at Lawrence on the 21st of August, 1863. He was ordered from Paola to Fort Leavenworth. The report of the Adjutant-General shows that his station on the 31st day of March, 1863, was at Paola; and that on the 30th day of April it was at Fort Leavenworth; on the 31st of May it was at Lawrence; on the 30th of June it was at Fort Scott; on the 31st of July unknown; and on the 31st of August, ten days after Quantr'ell’s raid, it was again at Fort Leavenworth.
    If Captain Christian had had this money with him at Fort Leavenworth it would have been perfectly safe.
   Boeing-, J.,

delivered the opinion of the court .*

The petitioner was acting assistant commissary and additional quartermaster in the military service of the United States, and he claims to be credited in his accounts with $2,048.56, lost by him. without fault on his part. The claim is made under Aet 9th May, 1866, (14 Stat. L., p. 44.)

In this case the evidence fixes the facts that the money specified was received by the petitioner, and returned in his accounts to the Department, so that he charged himself therewith; that a package, sealed and addressed to himself, was deposited by him in the iron safe of H. S. & L. Fillmore; and that the safe was plundered and the store burned by the rebels, and the owner of the safe and store killed at the time. It is also in evidence that the package contained money belonging to the Government, but the amount is not shown. This was a fact not likely to be known to any but the claimant, and we think the amount may be reasonably inferred from his return to the Department in April, 1803, supported as that is by evidence of his good character.

The evidence stated indicates that after the money Avas placed in the safe, Colonel Lynde, and the Ninth Begiment' of "Kansas Volunteers, and the petitioner, were stationed at different places till after the loss of the money."

The deposition of the petitioner was offered in evidence, and its admission claimed under the exception to the rule of common law by which a party is admitted to testify in his own behalf ex necessitate rei, because his is the only testimony that the circumstances can furnish. But, as argued by the Attorney-General, this exception is confined to cases where the defendant is a wrong-doer, and is admitted in odium spoliatoris, as Avhere a common carrier or a ship-master has plundered boxes, &c., intrusted to them, and the contents are likely to be known only to the owner. It is true that the exception has been, in some decisions, extended to cases in Avliich the loss was from negligence merely, but these decisions have not been generally admitted, and have been entirely overborne by the weight of authority; and the principle that excludes a party from testifying has been always strictly adhered, to by the Supreme Court -of the United States, which, on the ground of public policy, and preventing the temptation to perjury, and the perversion of justice and morals, has steadily excluded parties from testifying in a series of cases cited in the last of the list, Bridges v. Armor, (5 H., 91.) In that case Justice Nelson cited the case of Scott v. Lloyd, in which the Supreme Court said: “The decision in 1 Peters, (C. C. C. R., 301,) where the court held that a party named on the record might be selected, so as to -constitute him a competent witness, has been cited and relied on in the argument. Sucli a rule would hold out to parties a strong temptation to perjury, and we think it is not sustained either by principle or authority.”

And in the case of Stein v. Bowman et al., (13 Peters, 209,) where a party had been admitted to testify, the Supreme Court, after noticing his liability for costs, remarked that “if he had been released, or a sum of money sufficient to cover the costs of suit had been brought into court, his competency would not have been restored;” and there the party admitted was officially only plaintiff, for he was one of the assignees in bankruptcy.

And-Justice Nelson, after citing these cases, says: “The exclusion is placed on the ground of policy, which forbids a party from being a witness in his own cause, * * * thereby holding out to litigants temptations to perjury and to the manufacturing of witnesses in the administration of justice.” Since these decisions, statutes in England and in this country have admitted parties to testify, but both parties; and thus the law has done justice between them, if it has abandoned the principles and experience of ages. But here such a rule is inapplicable, for the United States cannot testify; and, therefore, in litigation here, and especially in cases of this class, to admit claimants to testify would be to subject the United States to unequal and therefore inequitable litigation.

These reasons are in the statute, which imperatively excludes the claimant here from testifying; and against that no rule of the common law and no exception to such rule can prevail; therefore we did not consider the claimant’s deposition in coming to our conclusion, but found that in the beneficent purpose of the statute and the strong case of probabilities made out by other testimony.

Milligan, J.,

dissenting:

I am unable to concur in this opinion, because I do not think the claimant brings himself within the provision of the statute.  