
    Pennsylvania Company v. The United States.
    
      On Motion.
    
    
      The petition alleges that certain moneys belonging to the claimants were seieed by the army engaged in the suppression of the rebellion, but afterward came to the possession of the Government. The defendants move to dismiss the petition ■upon the ground that the moneys were appropriated by the army, and jurisdisdiction of the action was talcen away by the Act 4th July, 1864.
    I. Where the defendants’ objection toapetition goes to the right of a claimant to maintain his action, it should be presented by demurrer or plea, aud where it goes to the. jurisdiction it should be taken by plea to the jurisdiction.
    II. Where property seized by the army engaged in the suppression of the rebellion came to the possession of the Government, it was not “ appropriated” by the army, within the intent of the Act ith July, 1864, (13 Stat. L., p. 381,) and the Court of Claims may entertain jurisdiction of such an action.
    Mr. Alexander Johnston in support of the motion.
    Mr. H. L. Stanton opposed.
   Nott., J.,

delivered the opinion of the court:

Undoubtedly motions to dismiss for want of jurisdiction have been made in this court, and undoubtedly they have sometimes been allowed ; nevertheless, where the defendants’ objection goes to the right of the claimant to maintain his action, it should be presented by demurrer or plea; and where it goes to the jurisdiction it should be taken by plea to the jurisdiction. The rights of the parties will thus appear on the record in a definitive manner, susceptible of legal construction, and the aggrieved party will be able, if he choose, to take up the question by an appeal and present it intelligibly to the Supreme Court.

In this case no question has been raised as to the regularity of the motion, and the parties have argued the matter as though it were properly presented. The ground of the motion is that the claimant’s money was appropriated by the army engaged in the suppression of the rebellion, and that the jurisdiction of the action was taken away by the Act July, 1864, (13 Stat. L., p. 381.) But it is clear, if the facts alleged in the petition be true, that there was no appropriation by the army, and that on the contrary the property seized came to the possession of the G-overnment. Whether an action will lie to recover it under the Abandoned, or captured property Act, or upon an implied contract, are very grave questions which the motion does ¡not present, and as to which we express no opinion.

The motion is denied.  