
    Wallis Pattee v. The United States.
    
      On the Proofs.
    
    
      An acting commissary in Dakota Territory is robbed of ¡§550 belonging to the government, in July, 1866. The departments refuse to pass his accounts. He brings an action “for relief from responsibility on account” of the loss under the act 9 May, 1866, (14 Stat. L., p. 44,) but offers no testimony save his own, which is vague and unsatisfactory, and discloses the fact that there were disinterested parties cognizant of all the circumstances.
    
    To sustain an action “for relief from responsibility on account of losses by capture or otherwise,” undsr the disbursing officers’ act, 9 May, 1866, (14 Stat. L., p. 44,) the claimant’s own testimony alone is insufficient, expressly when it appears that there were disinterested parties cognizant of all the circumstances.
    Messrs. Chipman and Hosmek for the claimant:
    This is a suit brought under the provisions of the act of Congress May 9, 1866, (Stat. L., 14 vol., p. 44,) for relief from responsibility. on account of loss of $549 95, stolen from tlie petitioner, without his fault or neglect, on the 2d day of July, 1865, at Yancton, Dakota Territory.
    The law provides, sec. 2, “That whenever this court shall have ascertained the facts of any such loss to have been without fault or neglect,” &c., “it shall make a decree, setting forth the amount thereof,” &e.
    The question, then, is one of fact rather than law.
    The only witness sworn in the case was the petitioner himself. From this testimony it appears—
    That on the 30th day of June, 1866, he received for sales of subsistence stores the sum of $517 30, and that prior to that time he had received for similar sales $32 65, making the sum claimed ; that all this money belonged to the United States; that it was kept in a common leather trunk, the only place in which it could be kept with any safety. The money remained in this trunk till the 2d day of July, 1866 ; this trunk was kept in a building where he slept, and which was also used for an office. The evening of the 2d July he locked the trunk, and also the outside door of the house, and put both keys in his pocket and went to bed, putting his pants, in which were the keys, under his head. On the morning of the 3d of July he got up at sunrise, went to the office room, and found the door partly open. The trunk was gone; the money was never recovered. The trunk was never found, but a pair of pants that were in it when stolen were found on the river bank. There were some private funds in the trunk of witness, and some clothes, besides other valuables; all were stolen. There was no other place where funds could be kept; he had occupied this house over a month; no others had access to it, and no others, of his knowledge, had keys to the house. The only other person in the house the night of the 2d of July slept in the room with him. The government furnished no other place to keep funds, nor was there any guard to be had.
    Beside this testimony there is also in the printed testimony of petitioner the original official report of petitioner, made at the time, to his superior officer, under oath, together with the affidavit of his clerk, Wilson Wall.
    These confirm the statements in proof. There would seem to be no doubt of the facts, however, and the only question remaining is, whether they excuse the petitioner from blame, and entitle him to relief under the law. We think this case presents merits not less exculpatory of this officer than are presénted in the several cases already adjusted by this court.
    
      The Deputy SOLICITOR for the defendants :
    This is a ease where allowance is asked for a sum of money in a disbursing officer’s hands, stolen out of a trunk while he was sleeping. The inquiry is, whether the circumstances attending the loss are such as will free the claimant from a just imputation of fault or neglect. The solicitors find, on examining the evidence, that there are grounds for interposing objections to a decree for the allowance prayed.
    The petitioner asking relief in the present case has given a succinct detailed account of the way in which he had the misfortune to lose $549 95 of public moneys, just then coming into his hands. As acting assistant quartermaster and acting assistant commissary of subsistence, Lieutenant Pattee occupied a sleeping room right above the one he had for an office. He was stationed at Yancton, Dakota Territory, during the month of June, 1866, and up to or about the 15th day of July, 1866, when he was to be mustered out of service. The loss of the money specified in the petition occurred on the 2d of July, 1866, within the two days after his receipt thereof, from sales of subsistence stores. This public money was let stay in a common leather trunk, and the trunk in the lower room of the tenement occupied as a public office. It was a town, too,- in a distant Territory, apparently so fresh and new that “ there were no attorneys or lawyers there,” and where the claimant had his shrewd suspicions excited as to the possibility of finding any better and safer place for putting it away than in the leather trunk, kept down in the office, with the only door of the tenement opening from the street into this room.
    But, in the allegations of the petition, there was a place with more semblance of security for keeping, during a day or two, any moneys coming into his hands. This was the upper room, where he might have had a companion constantly sleeping with him. Here the leather trunk would not have been in the public eye, and so likely to be recognized as his strong-box for money received. Lieutenant Pattee was not that hare-brained, wild fellow, entering the army at an. age when acts of oversight might seem somewhat more excusable. He was fifty years old, and with experience enough to have made it sheer negligence to be so over-confident, when he had government money in his possession. This lower room, in the house furnished by the government, appears to have been a place of deposit for subsistence stores; and, while he complains of having no one to assist him in taking care of this property of considerable value, common prudence should have suggested additional inside bolts and bars.
   Peck, J.,

delivered tbe opinion of the court:

Wallis Pattee, who was, during the months of June and July, 1866, a lieutenant of the 7th regiment of Iowa cavalry, was engaged on detached service as acting assistant quartermaster and commissary of subsistence, at Yancton, in the Territory of Dakota, alleges that, on the 30th of June of that year, he sold at that place some remnants of subsistence stores, for which he received $517 30, which sum, together with the sum of $32 65, belonging to the United States, were stolen from him on the 2d of July following, and not recovered, he asks for a decree allowing him credit for these sums, with the accounting officers of the United States.

It may be hard for this claimant, if we refuse him a decree, but he has not furnished such testimony as satisfies the court, that he is without fault or neglect in the premises.

Save his own, there is no testimony in the record, and this discloses the fact that there were disinterested parties fully cognizant of all the circumstances connected with the loss. We are not disposed to take the testimony of the party to a suit to establish a fact, when others can do so. In this case there are some inconsistencies in the testimony of claimant; as when he says, in one part of his deposition, that he slept in an adjoining room to that in which the money was left, while, in another place, he says he slept over that room. Adjoining, in its ordinary acceptation, does not mean above, but on the same floor or level. We think there was great remissness in not making search for the money. There was neglect in not keeping the money in the room where the claimant slept. We are left to infer that claimant kept his wearing apparel in the trunk which held the money; it is rather unusual to keep a trunk containing the ordinary wearing apparel of a party so far removed from the place where he lodges, as this claimant kept his. As the case is presented, we are not satisfied that the petitioner was without fault or neglect in the matter, and we order his petition dismissed.  