
    HOLMAN’S CASE.
    Edward A. Holman, administrator of Oliver Holman, v. The United States.
    
      On the Proofs.
    
    
      A paymaster sends a package of money to a Treasury depository in Boston for safekeeping, by an orderly detailed for service at his office. The package does not reach the depository, being stolen by or from the orderly, who is tried by court-martial and convicted of the theft. The paymaster does not discover the loss for some days. Efforts are made to recover the money, but loithout avail.
    
    Where a paymaster sends a package of money to a Treasury depository in the same place, for safe-keeping, by an orderly who has been detailed for-service in his office, and the package is stolen by or from the orderly before it is received by the depository and the loss is not discovered by the paymaster for some days, it cannot be held to have been “without fault or negligence on the part of such officer,” as is required by the Disbursing-officers’ Act, (Rev. Stat., § 1062,) before relief can be decreed.
    
      The Reporters’ statement of the case:
    It should be noted in this case that the paymaster merely sent the package of money by the orderly, taking no steps whatever to verify the assumption that it reached the depository. As it was a package and not an ordinary deposit, no bank-book accompanied it, nor could the receiving-teller have receipted for the amount; but apparently no other receipt was sought, and the paymaster assumed that the package had been duly received until he had occasion to send for it. The following are the facts found by the court:
    1. Oliver Holman, the claimant’s intestate, was an additional paymaster in the United States Army, stationed at Boston, in the State of Massachusetts, in the year 1865.
    
      2. On the 29th day of July of that year, returning from Gal-lope’s Island, in Boston Harbor, where he had been, in the line of his duty, to pay the Twelfth Massachusetts Battery, he had on hand certain money of the United States, as such paymaster, consisting of current notes of different denominations. These notes he made into a package and intrusted to one Mc-Kenney, who then was, and for two months or more had been, an orderly detailed for service in his office, with directions to go to the Boston National Bank, a designated depository of the United States, where his official deposits were kept, and to deposit said package, with a request to the teller that the same should be kept for him intact.
    3. A few days afterward it was discovered that said package had not been deposited at said bank, but had been lost or stolen by said McKenney. On the 7th day of August following, said Holman reported the facts in writing to his superior officer in charge of the pay department of the district, stating therein the contents of said package to be $2,658. Efforts were made to recover the money lost, but without avail. On the 23d of August, 1865, said McKenney was tried before a general court-martial on charge of having failed to deliver, or of stealing or otherwise wrongfully disposing of said package, therein stated to be of the value of about $2,658. On this charge he was found guilty, and sentenced to be dishonorably discharged the service of the United States, with loss of pay, allowances, and bounties due or to become due, and confined at hard labor at such place as the comm an ding-general should direct, for the term of five years. This sentence was approved by'the following order:
    “Headquarters Department oe the East,
    “ New YorTe, October 15th, 1865.
    “ The proceedings, findings, and sentence in the case of Private William H. McKenney, convicted of stealing $2,658 from a United States paymaster, are approved, and will be duly carried into execution.
    “ The place of confinement will be at the State-prison, Concord, New Hampshire, to which place the prisoner will be sent under guard, with a copy of this order.
    “ JOSEPH HOOKER,
    “ Major-General Commanding.”
    
      4. Said paymaster, in. bis official account rendered November, 1865, claimed credit for $2,658 thus reported as stolen from him by or through said McKenney. This claim was not acted upon by the War Department until March, 1872, when the Acting Paymaster-General recommended that credit be allowed Major Holman for the amount ; and on the 14th of March, 1872, this recommendation was disapproved by the Secretary of War. On the 15th of October, 1872, a suit was instituted by the United States in the circuit court for the first circuit, upon the official bond of said paymaster, to recover a balance of $3,220.02, claimed to be due from him, and said suit is still pending.
    5. Said Oliver Holman had the general reputation of being a careful, prudent, and accurate paymaster.
    6. Oliver Holman died February 29, 1872, and the petitioner was appointed administrator on his estate November 20, 1872.
    
      Mr. C. JE. Pike for the claimant:
    The court is authorized to grant relief in this case by the act of Congress of May 9,1866, (14 Stat. L., p. 44.) Where the amount lost is known only to thedisbursing-officer, (whose testimony, if he were living, would be inadmissible,) the beneficent purpose of the statute allows and requires that resort should be had to the probabilities made out by other testimony, including that which relates to the good character of the officer.
    
      (Whittlesey’s Case, 5 O. Ols. B., p. 452, at 454; Glenn's Case, 4 O. Ols. B., p. 501, at 510; Christian's Case, 7 O. CIs. B., p. 431, at 435.)
    Therefore, accounts rendered to the Treasury Department by such officers, and the “ statement of differences” made by that Department, have been held to be proper evidence in proof of the amount of funds in their possession at the time a loss occurred, as well as of the probable amount of such loss. (Glenn's Case, as above, statement of Attorney-General, p. 503. Christian's Case, as above, opinion of court, p. 435.)
    In determining whether an officer is free from 11 fault or neglect,” the circumstances attending his particular case must be considered. (Malone's Case, 5 O. Ols. B., p. 486, at 489.
    He need show only that he pursued such a course as would be pursued, iu similar circumstances, by a discreet and prudent person in the management of his own affairs. (Glenn’s Case, as above, p. 504; Malones Case, as above, p. 489.)
    Contemporaneous reports, letters, and other communications, made by officers in the line of their duty, are admissible as testimony. [Savage’s Case, 10. Cls. B., p. 170, at 172; Furman's Case, 5 C. Cls. B., p. 579, at 585; Cordon's Case, 6 O. Cls. B., p. 292, at 294.)
    The statute of limitations (sec. 10, act of 1863,12 Stat. L., p. 765) cannot be successfully pleaded in bar in this case. The several provisions of the act of 1863 (including that of limitation in section 10) are to be restricted to those claims in which the petitioner sets up a money demand as due from the Government, and which pass into judgment as prescribed in section 7, act of 1855, and section 7, act of 1863. (Alire's Case, 6 Wallace, 573, at 575, 576.)
    The statute under which the present cause arises was not enacted for the purpose of enabling an officer to enforce a money claim due from the Government, but to afford relief in the nature of a set-off when the Government should claim money from him. Not to make such relief commensurate, in time, with the claim of the Government, would tend to defeat the beneficent purpose of its enactment. It was intended to be used as a shield in defense; and is, therefore, not subject to the conditions which may be applied to a process of attack, and the time of its use.
    The cause of action in this case arose within sis years before the filing of the petition. Such a suit could only be properly brought after a final “ statement of differences.” Until that time it could not be determined that the petitioner would be “held responsible” for the amount of the loss. This statement was made by the accounting-officers of the Government in March, 1872.
    
      Mr. Joseph K. McCammon (with whom was the Assistant Attorney- General) for the defendants:
    There is no proof of the amount of Government funds given to McKenney to deposit, nor is there proof that the package contained any money. Without such proof a decree in accordance with the Act May 9,1866, (14 Stat. L., 44,) or Bev. Stats., sections 1060,1062, cannot be made. The intrusting of Government funds to an orderly was unnecessary and entirely reprehensible. Major Holman or his clerk should have made the deposit, as was usual.
    Although jurisdiction in this case was conferred by act of May 9,1866, the statute of limitations provided by the act of March 3, 1863, is extended to this and all other cases where the court has jurisdiction, except where it is otherwise provided. (Zellner’s Case, 7 C. Ols. R., p. 137.)
   Richaedson, J.,

delivered the opinion of the court:

This petition is presented by the administrator of Oliver Holman, an additional paymaster in the Army, claiming relief from responsibility on account of the loss by theft of Government funds in his hands, while in the line of his duty, under the provisions of sections 1059 and 1062 of the Revised Statutes.

The former gives this court jurisdiction of—

“The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing-officer of the United States, or of his administrators or executors, for relief from responsibility on account of capture or otherwise, while in the line of.his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsibleand the latter is as follows:
“ Whenever the Court of Claims ascertains the facts of any loss, by any paymaster, quartermaster, commissary of subsistence, or other disbursing-o’fficer, in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting-officer of the Treasury shall allow to such'officer the amount so decreed, as a credit in the settlement of his accounts.”

The facts are that Oliver Holman, the petitioner’s intestate, was stationed at Boston, Mass., as a paymaster, and on the 29th of July, 1865, on returning from Gallope’s Island, in Boston Harbor, where he had been, in the line of his duty, to pay a battery, he had on hand certain money of the United States in current notes. These he made into a package and delivered to an orderly detailed for service in his office, with directions to take the same to the Boston National Bank, a designated depository, where bis official deposits were kept, and to request the teller to keep the same for him. intact. The package was never received by the bank, but was stolen by or from the orderly, who was tried before a general court-martial for the larceny, convicted, and sentenced to five years’ imprisonment and other punishments therefor.

A majority of the court are of opinion that the paymaster was at fault and negligent in intrusting so large an amount of money to an orderly in his office, instead of depositing the same at the bank himself, or sending it by his clerk, and, therefore, that the petitioner is not entitled to the relief from responsibility which he prays for.

But, speaking for myself alone, I think there is another fatal defect in the claimant’s case. He has failed to prove the amount of money contained in the stolen package, and the court has no means of determining the extent of the loss.

The only facts bearing upon that point are these: Immediately after the larceny, Holman, the paymaster, reported the fact to his superior officer, and stated that the package contained $2,658 j and in his next official account, four months later, he claimed credit for the same amount therein alleged to have been thus stolen from him. He also testified to the same amount of loss before the general court-martial by which the orderly was tried upon the charge of having committed the larceny. The court-martial found the orderly guilty of stealing the package, stated in the proceedings to be “ of the value of about $2,658and this statement of value, uncertain as it is, was founded only upon the oath of the paymaster himself. The issue tried before that military court was whether or not the orderly had committed the larceny of a package of money of the value of about $2,658, and the exact amount of notes contained therein was not material and was not found by the court. It is true that the commanding general, in approving the findings, recites and approves the conviction of the accused for £< stealing $2,658 from a United States paymaster,” but in this he assumes what was not proved and what the court did not find.

All this is wholly incompetent to prove the actual amount of money lost, which it is necessary for this court to determine in order to grant any relief. The declaration of the original claimant, not made under oath, and his sworn statement before another tribunal, are equally inadmissible in his own favor in a case brought in this court by his administrator for the benefit of his estate.

We are left, then, in my opinion, without the slightest legal evidence whatever as to the amount of loss sustained by the petitioner’s intestate.

The unanimous judgment of the court is that the decree prayed for be refused and the petition be dismissed. 
      
       See, on this point, the decision in Paymaster ClarWs Case, post.
     