
    Battelle and Evans v. The United States.
    
      On the Proofs.
    
    
      The. claimants sell and deliver beef for the army at various times in May and June, 1862. They briny this action in February, 1869. The defendants plead the statute of limitation. The claimants reply that the action was brought within six years after their claim was disallowed by the War Department.
    
    The Amended Court of Claims act, (12 Stat. L., p. 763, § 10,) provides that a claim shall he barred unless the petition he filed “ within six years after the claim first accrues.” The purpose of a statute of limitations requires that the time at which the statute is" to attach shall not he left to the control of the creditor. Therefore the act must he held to run from the time when delivery of the goods was made, and the price became payable, andnotfrom the time when an Executive Department disallowed", the claim.
    
      Mr. It. M. Gonoine for the claimant.
    This is a petition to recover of the defendants the sum of" $45,712.33 alleged to be due for a balance on account of beef furnished to the Army of the United States, in West Yirginia, in 18C2. It is averred that said beef was furnished under orders issued by the proper authorities in the field, and to-supply emergencies then existing, all of which is sufficiently evidenced in the telegrams issued by Captain KcKenzie, commissary in the army under General Frémont.
    The question raised by the Government in its plea of the-statute of limitation is answered by the replication filed by tlie -claimant.
    The first section of tbe act establishing the court declares it to be to “ hear aud determine all claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the 'Government of the United States, -which may be suggested to it by a petition filed therein;” and the petition is required iu general terms “ to set forth a full statement of the claim, and of the action thereon, * * * by any of the Departments, if such action has been hddP
    
    Now, if there were nothing further, this jurisdiction does not attach as to a claim that it is proper to submit to an Executive Department until the Department has acted thereon; for by this clause, giving the general requisites of a petition in such ■case, the court must be informed of the action of the Department thereon.
    2. The court, by section 3, hadauthority to establish rules ■and regulations for its government,” and under this clause the court made the rule, under the head “petition,” that, -“in every case where the claim is such as is ordinarily settled in any Executive Department, the petition shall show that ■application for its allowance has been made to that Department, and without success, aud its decision.”
    Under this rule, no petition can be filed in this court on a •claim that is “ ordinarily settled in any Executive Department, which is the class embracing the plaintiffs in this action, until presented for allowance, and it is rejected in the appropriate Department.
    3. Section 10 of the amendatory act is simply a statute of limitation, providing that claims in this court must be filed “ within six years after the claim first accrues.”
    The construction of this clause is the turning point on this replication, and that construction is the right one which harmonizes with the body of the act. When does the claim first accrue ? It accrues the first day it can be prosecuted in this court, and it can be prosecuted in this court whenever it has been presented to the Executive Department in which such •claims are ordinarily settled and has been rejected, and not till then; and at any time within six years after the departmental .decision the petition may be filed
    
      This construction of tbe Atord accrue is in harmony with its construction in all similar acts. At the inception of the claim the owner may be under disability, as provided in this and all similar acts, or the claim itself may be under disability, as a promissory note payable one year after date. The statute runs from the date when the note is payable. So of a claim against the estate of a deceased, the right of action does not accrue till after presentation of the claim to the administrator, and rejection by him, and then the statute barring the claim begins to run, and not till then; and if six months, or whatever time thereafter be limited, elapse, then the action is barred. This is a parallel case. The claim is first presented for allowance to the Department and rejected, and the claim, as one proper to be heard in this court, first accrues at the date of the departmental decision, and the petition may be filed at any time within six years thereafter.
    But I desire to call the attention of the court particularly to the fact, first, that the Act of the 3d March, 1863, (12 Stat. L., p. 765, § 14,) provides that “the said court may prescribe rules and regulations for practice therein, and may generally exercise such powers as are necessary to carry out the powers herein granted to it and, second, that section 10 of the same act contains the limitation under consideration. Now, if the court had the power to make this rule, it is derived from this same act, and, having exercised this power,, it is of the same validity and force as the provisions of section 10, and operates as a limitation on and gives a construction to it which harmonizes the whole.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
    This is a case in which we cannot state the facts and then present our points of defence.
    No allegation of the petition which is material to a recovery by the claimants is proved by any competent testimony.
    The petition alleges that the claimants were “ contractors to furnish the United States Army with beef, for the sustenance and support of that portion of said army constituting and belonging to the Mountain Department,” and there is no proof that they were such contractors.
    
      And tbe claimants aver that “ they presented to tbe proper officers in tbe War Department their claims aforesaid, for tbe cattle and beef as aforesaid delivered to tbe Mountain Department, and tbe same were rejectedand tbe testimony on file (not printed) shows that portions of their claim were presented to and rejected by the War Department, but does not show that other portions of their claim were ever presented to tbe Department.
    Tbe claims of tbe claimants (if any they have) appear by tbe testimony offered to have all accrued before the 1st day of June, 1862. Their petition was not bled in, nor transmitted to, this court till tbe 3d day of February, 1809. They are therefore barred by the provisions of the tenth section of tbe Act of March 3, 1863, (12 Stat. L., p. 765.)
   LoRING, J.,

delivered the opinion of tbe court:

The petitioners claim $45,712.33 for beef, &c., sold and delivered to the United States, under a contract dated February 1,1862.

The contract provided that payment should be made monthly for the beef, &c., delivered, and the evidence showed that the latest deliveries were made in June, 1862. The claims for payment were presented at the War Department and disallowed.

Tbe petition was filed in this court February 3, 1869, and the defendants pleaded in bar the statute of limitations. (Stat. March 3,1863, § 10.)

To this plea the claimants replied “ that said claim was duly presented to the War Department of the United States for settlement and payment; the said Department being the Executive Department where such claims are ordinarily settled, and that the same were disallowed on the 24th clay of October, A. D. 1867. Whereupon these claims first accrued, and the right to file this petition first accrued.”

The Question raised on these pleadings is, whether tbe statute began to run when tbe price for the deliveries, &c., became payable, or when the claims were disallowed at the Department.

We think the claim u first accrued,” in the language and meaning of the statute, when the right to demand the price for the property sold first vested in the petitioner.

And any other construction would defeat the protection of the United States, which the statute intends, for no time is fixed by law in which a creditor of the United States must present his claim to a Department: and if the statute did not attach till such presentment was made, a creditor of the United States, by postponing that presentment, might postpone the operation of the statute at his pleasure, and thus extend the liability of the United States for twelve instead of “ six years,” which is the term of time the statute specifies for the continuance of such liability, and on which it makes the payment of the debt and the loss of its evidence a presumption juris et de jure.

The purpose of a statute of limitation requires that it should not leave the time at which it is to attach at the control of the creditor.

In the case of The United States v. Thomas Clyde, appealed from this court, the Supreme Court, at their present term, decided that the rule of this court, requiring a claimant hereto to first present his claim to the proper Department, transcended the authority of this court, and was of no, legal effect, and they remanded for trial here the claim we had dismissed under that rule. If the presentation to the Department is not obligatory on a claimant, he cannot thereby postpone the operation of the statute of limitations.

We find, as a conclusion of law, that all the claims sued for are barred by the tenth section of the act of 3d March, 1863.

The petition is ordered to be dismissed.

Milligan, J.

I concur in the foregoing opinion, under the authority of the Supreme Court in Clyde's Case (ante, j>. 262.)  