
    CAROLINE WESTON v. THE UNITED STATES AND THE COMANCHE INDIANS.
    [Indian Depredations,
    628.
    Decided October 29, 1894.]
    
      On the Proofs.
    
    More than thirty years after the alleged depredation and less than one month before the jiassage of the Indian Depredation Act, 1891, the claim is first presented for payment. At the time the act is passed no evidence has been talren.
    I. Ordinarily a claim is pending in a Department as soon as application for payment is made. But in the Indian Depredation Act, 1891, it is Provided that “no case shall he considered as pending unless evidence has been presented therein.”
    
    II. The sworn allegations of the claimant appended to his claim, required by rules prescribed by the Secretary of the Interior, are not evidence within the intent of the act.
    
      The Reporters'1 statement of tbe case:
    Tbe following are tbe facts of this case as found by tbe court:
    I. February 20,1891, tbe claimant filed before tbe Secretary of the Interior tbe following declaration and application for payment of her claim, in accordance with the rules of the Department; upon which claim this action is founded:
    “DECLARATION EOR INDIAN DEPREDATIONS.
    “State oe Texas, County of Kerr:
    
    “Ón this second (2nd) day of February, A. D. one thousand eight hundred and ninety-one, personally appeared before me, a notary public of Kerr County, within and for the county and State or Territory aforesaid, Caroline Weston, aged 54 years, a resident of Center Point, county of Kerr, State of Texas", who, being duly sworn according to law, declares that the Comanche Indians, with force and arms, seized, killed, drove, and carried away from the open range, situated near Silver Creek, county of Kerr, State of Texas, on or about the 27th day of August, A. D. 1850, in the night, the following-described property, to wit: Three large American bred mares, all between the ages of 4 and 9 years, and two large American bred horses between the same ages (all of said horses were sound and in good condition), and five colts between one and three years old, all large, American bred, and sound (no better horses and mares sold out of the same bunch for over one hundred dollars each, of declarant, Caroline Weston), of the value of seven hundred and fifty dollars. The said horses (2) were worth $100 each, $200; the said mares (3) were worth $100 each, $300; the said colts (5) were worth $50 each, $250.
    “Total loss $750.00, and could not have been replaced for less money at the time and place stolen by said Indians.
    “Declarant knows that said Indians were Comanche from the following facts: The party who pursued said Indians said they were Comanche. All of said horses were killed by said Indians.
    “That none of said stock was ever recovered except not included in this estimate.
    “That she never received any pay for any of said property, nor has she souglitrevenge orprivate satisfaction of the Indians on account of said loss. That at the time of said loss she used due diligence in protecting her said property.
    “That said property was not on said Indians’ reservation at the time stolen by said Indians. That she was, at the time said property was stolen, a citizen of the United States. That she makes this declaration for the purpose of receiving payment for the loss of her herein-described property by the depredations of said Indians, as provided, &c.
    “That she appoints Loomis & Clark, of Washington, D. C., her attorneys to prosecute and adjust her herein-described claim for thirty per cent of the amount allowed thereon, and
    
      hereby orders the Treasury Department of the United States to pay the same direct to her said attorneys and the remainder direct to her. “ Carollne Weston.
    “G. K. Moore.
    “W. E. Part'Ord.
    “ Also personally appeared C. K. Moore, residing at Centre Point, Kerr Co., Texas, and W. E. Pafford, residing at Centre Point, Kerr Co., Texas, persons whom I certify to be respectable and entitled to credit, and who, being by me duly sworn, say that they were present and saw Caroline Weston, the claimant, sigu her name to the foregoing declaration; that they have every reason to believe, from the appearance of said claimant and their acquaintance with her for 32 years, respectively, that she is the identical person she represents herself to be; and that they have no interest in the prosecution of this claim.
    “G-. K. Moore,
    “W. E. Paeeord.
    “Sworn to and subscribed before me this 2nd day of February, A. D. 1891, and I hereby certify that the contents of the above declaration, etc., were fully made known and explained to the applicant and witnesses before swearing, including the words erased and the words added; and that I have no interest, direct or indirect, in the prosecution of this claim.
    “ [seal.] “ Wm. D. Brown,
    
      “Notary Public, Kerr Co., Texas?1
    
    II. Prior to the passage of the Indian Depredation Act of 1891, MarchS, chapter 538 (26 Stat. L., 851, and Supp. Rev. Stat., 2d ed., p. 913), said claim was not pending before the Secretary of the Interior or the Congress of the United States, or before any superintendent, subagent, or commissioner authorized under any act of Congress to inquire into such claim, otherwise than by the declaration and application filed as aforesaid, without any further papers presented thereiu, and it has never been allowed.
    III. Since the case has been pending in this court the deposition of the claimant as to the allegations was taken in her behalf September 27, 1892, and filed by her January 24,1893.
    
      Mr. John W. Olarh for the claimant.
    
      Mr. Harry Peyton (with whom was Mr. Assistant Attorney-General Howry), for the defendants.
   Richardson, Ch. J.,

delivered tbe opinion of tbe court:

Tbe Act of March 3,1891 (cb. 538), giving to this court jurisdiction of certain claims of citizens of tbe United States for depredations committed by Indians (20 Stat. L., 851, and 1 Supp. Rev. Stat., 2d ed., p. 913), in section 2, makes tbe following proviso:

“ That no claim accruing prior to July first, eighteen hundred and sixty-five, shall be considered by the court unless the claim shall be allowed or has been or is pending, prior to tbe passage of this act, before tbe Secretary of tbe Interior or tbe Congress of tbe United States, or before any superintendent, agent, subagent, or commissioner, authorized under act of Congress to inquire into such claims; but no case shall be considered pending unless evidence has been presented therein.”

By tbe petition tbe claim is alleged to have accrued prior to July 1,1865, to wit, on tbe 27th of August, 1859, and it can not, therefore, be considered by tbe court unless prior to tbe passage of tbe act of March 3,1891, it bad been allowed by the Secretary of tbe Interior, or was pending before him or before Congress or some public officer named therein.

Tbe claim had never been allowed, and tbe only question is whether it was pending before tbe Secretary of tbe Interior prior to the passage of tbe act.

Ordinarily a claim is pending before executive officers as soon as application for payment is properly made in accordance with tbe rules applicable thereto. But Congress did not use tbe word pending in its ordinary sense, as it expressly declares in tbe act that “no case shall be considered as pending unless evidence has been presented therein.”

Tbe sworn allegations of tbe claimant, relied upon as evidence presented to tbe Secretary of tbe Interior, were nothing more than were required by the rules of tbe Secretary to form part of the application for payment, and can not be considered as evidence made necessary by tbe act to constitute a case pending.

Tbe application for payment must be considered, like tbe declaration in an action at law, as a necessary part of tbe pleadings, and its being sworn to, as required by departmental rules, gives it no other character than that of an ex parte affidavit, which is always held to be incompetent. Tbe word evidence has a well-known significance, entirelyindependentof tbe pleadings, and means competent evidence, sncb as documents properly authenticated and proved, or oral testimony taken under the forms of law, wherein opportunity for cross-exami.nation has been offered, all of which is presented subsequently to the declaration, or in connection therewith in proof of its allegations.

It was evidently the intention of Congress to protect those who had incurred the expense of taking testimony and collecting evidence and presenting the same to the Department and to exclude those who had made application for payment and thereafter had taken no steps for the prosecution of their claims, and especially to exclude those who, while the bill was pending-before Congress, hastened to make application for payment of claims which had been neglected for so many years as to labor under the presumption, or suspicion at least, of being visionary or stale.

The present claim certainly comes within the latter class. More than thirty years after the alleged depredation was committed and less than one month before the passage of the act of March 3, 1891, it was first presented for payment. What has happened was probably anticipated by Congress, that during the pendency of the bill a large number of claims would be presented to the Secretary of the Interior with the hope of gaining a standing in the Court of Claims under the act without having incurred any expense whatever in obtaining and presenting evidence in their support to Congress, the Secretary of the Interior, or other officer authorized to inquire into it.

This is the only interpretation that will give force and effect to the words of the act defining the meaning of “pending” as therein used, because declarations under oath similar to those upon which the claimant relies as being evidence within the meaning of the act were required to be contained in every application, and if no further evidence were necessary, then all applications were pending, without regard to the evidence presented.

The claimant relies upon the following provision of the act of March 3, 1891, as making the application and declarations filed in the Interior Department competent evidence:

“In considering the merits of claims presented to the court any testimony, affidavits, reports of special agents or other officers, and such, other papers as are now on file in the Departments or in the courts relating to any such claims, shall be considered by the court as competent evidence.”

It must not be overlooked that this provision applies only to evidence made competent in the Court of Claims by statute, while the evidence referred to in the act as to pending cases refers to that which is competent by the ordinary rules of law.

The judgment of the court is that the petition be dismissed.  