
    HERBERT G. GATES v. THE UNITED STATES.
    [Naval Bounty, 3807.
    Decided January 5, 1903.]
    
      On the Proofs.
    
    In bounty proceedings for the destruction of the Spanish vessel Alfonso XII, the claimant appears setting forth that he was an ensign, and distribution is made accordingly. He is, in fact, a lieutenant and entitled to a larger proportion of the bounty than he received. After he has been paid and the fund distributed he brings suit for the difference between the share of an ensign and a lieutenant.
    I. Where the distribution of a fund awarded to the officers and men of a vessel engaged in the destruction of a Spanish vessel has been made and an officer has accepted the amount awarded to him, it is too late for him to come in and claim a proportionate amount on higher rank than that awarded him.
    II. Where an officer contributes by his conduct to mislead the accounting officers, in consequence of which a fund in the Treasury belonging to the captors of an enemy’s vessel is paid away, the Grovermnent can not be required to pay a second time.
    
      The Meporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant was, on Juljr 4 and 5, 1898, an officer in the United States Navy, and served as such on the U. S. S. Castine in the engagement at Mariel, Cuba, hereinafter referred to, on said dates, and was so borne on the books of the «.Castine.
    II. On the 4th and 5th daj^s of July, 1898, an engagement took place at Mariel, Cuba, between the Hawk and Castine, armed vessels of the United States Navjr, and the Alphonso XII, a vessel of war belonging to the King of Spain, the United States and the King of Spain then being at war.
    III. The Spanish vessel of war Alphonso XII was then and there destroyed by being set on fire by the said vessels of war of the United States.
    IV. The force of the said Alphonso XII, excluding the shore batteries, was inferior to the force of the United States taking part in said engagement.
    Y. The number of men on board the said enemy’s vessel destroyed, as stated in finding m, was at the commencement of the action 116.
    VI. On the 22d dajr of May, 1901, the following order was entered bj^ the Court of Claims:
    ‘ ‘ The report of the auditor of the court, filed herein May 20, 1901, coming on to be heard, the claimants who have filed their respective petitions herein whereon judgments have not been rendered, claiming the right to share in the bounty decreed by the court for the destruction of the Spanish vessels of war at Mariel, Cuba, appear by counsel in open court and severally move that further proceedings in their respectivo cases in the court be suspended; and on their further motion therefor, concurred in by the Assistant Attorney-General, the court, after reading the said auditor’s report and considering the motions aforesaid, now order, adjudge, and decree:
    “1. That the orders, decisions, rules, and findings of the Court of Claims, and the list prepared by the auditor of the court and filed with his report herein May 20, 1901, all in relation to the claims for bounty for destruction of the Spanish vessels of war at Mariel, Cuba, July 4 and 5, 1898, under Eevised Statutes, section 4635, be, and the same are hereby, transmitted to the Auditor for the Navy Department for the purpose of making a distribution of the individual shares of the officers and enlisted men severally entitled to share as determined by the Court of Claims in respect to their several cases, or as decided bj^ the Court of Claims under like conditions in other cases of naval bounty.
    “2. It is further ordered, adjudged, and decreed by the court, that in the payment of claims by the Auditor for the Navy Department he retain for the use and benefit of the United States the bounty which accrued to all persons who have deserted from the Navy subsequent to the battle of Mariel.”
    VIL The claimant herein held the rank of ensign on July 4 and 5, 1898, but was entitled to promotion under Eevised Statutes, section 1562, and the act of June 22, 1814, section 1 (1 Sup. E. S., 36). His examination preliminary to promotion was delayed during the exigencies of the service at that time, and not from any cause involving fault on his part. ‘ He was commissioned a lieutenant, junior grade, on November 5, 1898, to rank from June 7, 1898.
    VIII. The following list of the officers and crew of the U. S. S- Castine was made a part of tbe record of naval bounty case No. 9, out of which the claim at bar arose, to wit:
    “U. S. S. OastiNE, 3 Rate,
    
      '"''Key West, Fla., July 85, 1S98.
    
    “Sir: This list embraces a complete enumeration of the officers and crew of this vessel on Juty 5, 1898, the date of the destruction of the Spanish steamer Alphonso XII.
    “2. No one attached to the Castine was absent on that day, nor are contestants known.
    “3. Of the officers, vacancies exist in the next higher grade in the cases of Lieutenant Nelson T. Houston, Ensign Herbert G. Gates, and P. A. Engineer Robert I. Réia, but thejr have not yet been commissioned.
    ‘ ‘ Respectfully, R. M. Berry,
    
      u Commander, II. S.F., Qommandi/rug.
    
    “ Secretary oe ti-ie Navy,
    “ Navy Department, Washington, D. QJ
    
    In this list the name of claimant appeared as follows in the listof officers: Pay roll No. 5, Herbert G. Gates; rank, ensign; pay, $1,400 per annum.
    IX.
    REPORT OE AUDITOR.
    “Engagement at Mariel, Cuba, ) Naval bounty,
    “ July 4 and 5, 1898. ' No. 9.
    “To the Court of Claims:
    “Attached are lists of the officers and men entitled, to share in the bount3r awarded on account of said engagement, with their rank or rating, and their rate of paj^ in the service for one jTear, the basis upon which bount3r is distributed, set opposite their respective names.
    “These lists are made up by comparison and correction of the prize lists filed in this court, with the rolls filed in the Treasury Department, and in accordance with the instructions of the court.
    “Attest:
    (Signed) “H. M. Cavis, Auditor.”
    Pa3unents have been made on the basis of the report, the total amount being $11,600.
    X. The claimant was paid, after May 22, 1901, b3’- the Treasuiy Department, $149.40, as of the grade of ensign, as bount3r for participating in the destruction .of the enemy’s vessel, as aforesaid. If he had been paid as lieutenant, junior grade, he would have been entitled to 1191.22.
    
      Air. WilUam B. King for the claimant.
    
      Mr. Assistant Attorney- General Pradt for the defendants.
   Howry, J.,

delivered the opinion of the court:

Plaintiff participated in the judicial proceedings which resulted in the award of his distributive share as an ensign bjr filing his petition as an officer of that grade and permitting the roster showing his rating among the officers of the Castine to be an ensign to be transmitted and filed as a part of the record of the cause without objection. Upon the coming in of the report of the auditor he appeared in open court by-counsel (the same counsel also representing the other petitioners) and obtained the entry of an order directing that the decisions, rules, and findings of this court relating to the bounty, together with the list prepared by the auditor, be transmitted to the Navy Department for the purpose of having distribution made of the individual shares of the officers and enlisted men severally entitled thereto, as determined bjr the court in respect to their several cases, or as decided under like conditions in other cases of naval bounty. Thus, bj^ his own act, as well as by the act of the Department, it resulted that, plaintiff did not share in the bounty as a lieutenant of the junior grade, to which he was entitled to be promoted as of and preceding the day of the battle.

There is no question but that plaintiff was underpaid. (In re Engagement at Manila Bay, 36 C. Cls. R., 208.) But the United States have paid $11,600, the total amount of bounty due for the destruction of the enemy’s vessel off the coast of Cuba. The distribution has been made and plaintiff took the part assigned to him as an ensign.

The jurisdiction of the court can be invoked after failure of the accounting officers of the Treasury to do more exact justice (Medbury v. United States, 173 U. S. R., 497), but not where a creditor has contributed by his conduct to mislead the accounting officers, assented to a schedule apportioning unto him a distributive share smaller than that he was entitled to receive, and afterwards accepting in payment a sum less' than that which he might have obtained had he been more careful in the assertion of his rights, at the same time permitting the only fund available for payment to be applied to the settlement of claims against it aggregating enough, with the amount apparently due to him, to absorb the entire fund.

It would be difficult to find a more equitable case of estoppel in pais. It does not alter the situation to say that the error was the result of a clerical inadvertence, and that the auditor’s report was never formally approved by the court. Nor does the intimation made at the argument that the report being on file only two days before its transmission to the Navy Department left plaintiff without adequate opportunity to object to the erroneously small award in his favor. Plaintiff’s haste took the report to the proper department at the end of two days, where it lay some time before actual distribution of the fund. The report was based on the petition and roster, and was ratified by the action of the parties in interest as effectually as if the court had formally approved it. The Government having paid what it was legally required to pay can not be made to pay a second time.

Plaintiff has lost his remedy, and his petition is accordingly dismissed.  