
    William R. Murphy v. The United States.
    
      On the Proofs.
    
    
      A lieutenant of volxmteers, assigned to duty as a commissary by the general m coxn-mand, has charge of the cattle used for the army. Being very actively engaged with his clerk axid nearly all the time in the saddle, he is unable to make the usual monthly returns. At a time when he has very little money in his posses-sioxi his papers and vouchers are captured by the enemy. The departxnents refuse to pass his accounts for want of the usual vouchers. He proves his accounts in court by his clerk, and by his oxen testimony.
    
    An officer in the receipt of public money, who is daily called upon to disburse the same, should receive credit therefor under the act of March 9, 1866, (Stat. L., vol. xiv, p. 44; see C. Cls. R., vol. 2, p. 519,) where his vouchers were captured by the enemy, it appearing- that the return was prevented by incessant duty of the officer and his cleric; the danger of capture not having-been supposed to be imminent.
    Messrs. Owen and Wilson for the claimant:
    This is an action brought under the provisions of the act of' Con'gress approved May 9, 1866, for the relief of disbursing officers of the army.
    The plaintiff was an acting commissary of subsistence under Gen- ' eral Banks, and on the 24th day of May, 1862, the train to which he belonged, with his desk, trunk, &c., was captured by the enemy in Frederick county, Maryland. He had received vouchers for money paid for herding, forage, and on account of employés, amounting to several thousand dollars. Some of, these vouchers were for money transferred to the officers, who having taken up the accounts on their returns and thus admitted their receipt, these items were allowed by the accounting officers of the treasury; but there were stoppages made against the plaintiff on the above-mentioned accounts to the amount of $4,006 04, which is reduced by sundry credits to the sum of. $4,003 60, for which amount a decree is sought in this court, upon which the accounting officers of the treasury can settle and adjust his ' accounts.
    The plaintiff’s clerk, Joseph P. Sailer, says: “At 1 o’clock the rebel cavalry cut the train in two and seized our wagons between Mid-dletown and Newtown. I was present at the capture and saw it myself. * * * . This wagon had our mess desk and Captain Murphy’s trunk containing $341. I saw Captain Murphy place this money in the trunk. * * * This desk contained every voucher and paper that belonged to the department from the time. Captain Murphy was detailed.”
    The retreat down the valley and the capture of their train have passed into history and become 'part of it, and will not seriously he denied.
    The capture of the train cannot be charged to the derelictions of Ais officer. It was one of the accidents and fatalities of war.
    Captain Murphy was required to use due care and diligence in the safekeeping and preservation of his vouchers and the money intrusted to him by the government. This he did by placing them in his desk and it in the train, the only method of transportation. The proof of his good intentions and the operation of his best judgment is that he placed his own money in the same desk.
    The return from the Third Auditor shows the disallowance by his office by reason of captured funds and vouchers to amount. to $4,006 04.
    Captain Murphy’s desk contained vouchers for these expenditures save $30 99, which it contained in cash. These having been captured and lost to him without his fault or neglect, he prays a decree for that amount in accordance with the act of Congress in such cases made and provided.
    The Deputy Solicitor for the defendants :
    The petitioner is asking the certificate of this court to his alleged due and proper disbursement of $3,975 05 under vouchers, and to-his having on hand a balance of such public moneys, amounting to the sum of $30 99, when a dash of rebel cavalry was made upon a military train, and his desk and trunk were captured with all these vouchers and funds. The matter would have admitted of easy solution, aud the certificate asked might have been allowed, not so much on the score of mere grace and favor as of legal right, had this officer shown no dereliction of duty up to the time of the capture of his luggage'or the cutting of the train, to which he happened at the moment to he attached. The petitioner rests this application for relief on his own deposition and that of Joseph P. Sailer, the enlisted man detailed along with him under an order through Colonel Murphy, commanding the regiment to which they both belonged. Neither of these parties, from the testimony given, could, from earlier habits of life, have been familiar with the mode of keeping accurate accounts. Yet the court is expected to enter a decree in favor of claimant when the acting-clerk deposes that “ his only means of knowledge of amounts is from his memory, and from the fact that he made an affidavit of the facts shortly after the occurrence.”
    The somewhat large amount, for which allowance is now demanded, was chiefly made up of small items received from the sale of .hides, tallow, and offal, Lieutenant Murphy and his assistant having contracted to take charge of beef cattle in the commissary or subsistence department just when the army under General Banks was marching and counter-marching through and down the disputed range of country, near the hank of the Potomac, in Montgomery county, Maryland. The petitioner, in the line of his duty, was bound to make monthly statements and quarterly returns. His last quarterly account, ending December, 1861, showed a balance due the government of $804 65. During the months of January, February, March, April, and May, 1862, he had been in receipt of funds from sales made by him, and he was disbursing moneys in payment for herding, forage, and other necessary and requisite expenses for the keeping of a large number of beef cattle, collected together under his charge, to be used by the United States troops, then encamped near Darnestown, Maryland, with such' constant liability to sudden change of position, as called for more than ordinary diligence and precaution. He now asks the Court of Claims to assume that what can only be approximated in the recollection of a witness as a sum total, must be taken as so much of day-book and ledger accuracy.
    . Promptness in the quarterly returns and accuracy in the monthly statements, with the aid of duplicate vouchers, were alike demanded by the exigencies of the service and the fiduciary nature of this employment. To have become a prisoner of war, or to have had all he owned captured, might have been the misfortune, not the fault, of the claimant. But the negligence in this case, to be fairly imputed under the act of 1866, does not relate merely to the time of the capture on the evening of the 23d of May, 1862. It was a continuing neglect in the line of duty as a disbursing officer prior to, but reaching to, that time.
   Peck, J.,

delivered the opinion of the court:

William B. Murphy, late first lieutenant 29th regiment of Pennsylvania volunteers, captain and commissary of subsistence, and brevet major United States volunteers, represents by his petition that during and before the months of January, February, March, April, and May, 3 862, he held the rank of first lieutenant in the regiment aforesaid, and was detailed by order of Major General Banks, commanding forces upon the upper Potomac, placed upon duty as acting commissary of subsistence, and temporarily stationed at Camp Muddy Branch, near Darnestown, Maryland, in charge of United States beef cattle; that while thus in charge he collected for the United States various sums of money, realized from the sale of hides, tallow, &c., and of commissary stores to officers, which sums of money were properly disbursed and accounted for, except the sum of $4,006 04. This sum, he alleges, was disbursed during the months aforesaid in payment for the herding, forage, and other necessary and requisite expenses attending the keeping of a large number of beef cattle under his charge for the then present use of the army encamped in the vicinity aforesaid — that is to say : $768 38 in the month of January, $1,039 10 in the month of February, $1,512 80 in the month of March, and from April 1 to May 23, 1862, the sum of $654 77, leaving a balance in his hands, unexpended, amounting to $30 99. That the regular monthly statements required of petitioner of his receipts and disbursements for the months of January, February, and March,-, aforesaid, are on file in the Treasury Department. That the command with which petitioner was connected took the field in active campaign on or about the 24th of February, 1862, and owing to their being kept constantly upon the move his quarterly account or report of his disbursements for the first quarter of the year 1862 was delayed. That afterwards, when the same had been prepared, upon the 24th of May, 1862, the wagon in which all the papers connected with the duties of this petitioner and the report aforesaid were being conveyed was captured by a cavalry force of the enemy, carried away, and lost to him. That on the said 23d of May,-, it was found by petitioner, on settlement of his cash book, that of the said sum of $4,006 04 there remained in his hands but the sum of $30 99 for which he was accountable, and that this money, with about $310 of his own, was placed with such other effects aS he had in the wagon as aforesaid, and that all, public and private property, was captured, carried away, and lost to him. That he cannot obtain proper credit at the Treasury Department, for want of vouchers for his disbursements aforesaid, of the sum of $3,975 05, nor of the money undisbursed, $30 99, which he insists were lost without fault or neglect on his part; and he prays a decree to aid him in the premises.

The claimant and bis clerk are tbe only witnesses examined in support of tbe prayer of tbe petition.

Joseph E. Sailer, who acted as clerk for Murphy before and at tbe time of tbe receipt and disbursement of tbe money to be accounted for, makes bis statements with great particularity. He says :

“ I enlisted on tbe 8th day of June, 1861, in company G, 29th regiment Pennsylvania volunteers,' and was mustered in on the 29th day of June, 1861. William R. Murphy was mustered into tbe regiment on tbe 10th day of September of tbe same year as first lieutenant of company F. A detail came two or three days before tbe battle of Ball’s Bluff, in tbe month of October, by order of Major General N. P. Banks — that is to say: Colonel Murphy, commanding tbe 29th regiment Pennsylvania volunteers, was ordered by General Banks to detail an officer and an enlisted man to take charge of beef cattle in tbe commissary, or rather subsistence, department, and Lieutenant Murphy and I were so detailed. He was assigned to duty to a place called Muddy Branch, near Darnestown. We moved from there to Frederick City, on December 2, 1861, and we left Frederick on 22d February, 1862. I was Captain Murphy’s (tbe claimant’s) clerk. My duties were to make out all tbe necessary papers, pay rolls, &c., and transmit abstracts and returns to the department. I rendered an account for the quarter ending December, 186 L, showing a balance due tbe government of $804 65. Up to that time and for two or three months afterwards all tbe money received by tbe claimant was produced from tbe sale of bides, tallow, and offal. This was tbe case up to May 25, 1862.
“All tbe money received for bides and tallow was paid to me, and all moneys disbursed passed through my bands. I always drew up the receipts. The sale of hides and tallow was in pursuance of a contract made.with tbe purchaser by Oaptain E. G. Beckwith, chief commissary of tbe division.
“ My returns were kept in such condition that if I had one day’s work I could have made niy returns to the department. I bad them all ready to be mailed a few days before the retreat down tbe valley, together with my monthly statement for April. I put them in my desk in tbe wagon and put my desk in tbe wagon on tbe morning of' the 24th of May, 1862. I made the last settlement of my cash accounts about 9 o’clock on tbe evening -of May 23, which showed a balance of $30 99 in our bands. I omitted to mention that the only-sale of hides in April or May was qf one hundred dollars.
“ We started on the march about half-past eight, and at about one o’clock the rebel cavalry cut the train in two and seized our wagons-between Middletown and Newtown. I was present at the capture and saw it myself; I was alongside of the wagon. .This wagon had our-mess, desk and Captain Murphy’s trunk, containing $341; I saw-Captain Murphy place this money in the trunk; he remarked ‘it would be safer there than on his person.’ We had the night previous counted how much money belonged to the government, and found it to be $60 99. This amount was a part of the money placed in Captain Murphy’s trunk; the balance was his private property.”

The claimant testifies that the disbursements made by Sailer, his clerk, in January, February, March, April, and May, were “ for herding and for forage, and for the payment of employés. The forage was. for United States beef cattle, and consisted of hay, corn, and fodder.

“ I obtained for these disbursements proper vouchers. The vouchers obtained for these, disbursements were in the captured desk referred to by Mr. Sailer. They were in the usual form in which vouchers of that character were made out, and such as had been previously and were subsequently allowed by the department.
“ Both sets of vouchers (that is, in duplicate) were in the desk. I last saw those vouchers on the night of May 23, 1862. I was helping to pack them up. I assisted in placing them-in the desk, and never saw them afterwards.”

We think these facts, as detailed, relieve the claimant from the imputation of fault or neglect. The transportation train was the only means furnished by which he could remove his desk; and that he thought this- a safe place of deposit for the vouchers and government funds is best manifested by his placing his individual funds in the-same keeping. Unless he intended to desert his post the train was as. safe as his person, and if both should be captured the danger of loss was equal in both cases.

The deputy solicitor insists that the omission to make monthly reports would imply such neglect on the part of Murphy as would prevent a decree in his favor. Sailer^ his clerk, states that he was constantly occupied, being every day in the saddle, and that he had not leisure to make them. The reports would not have exonerated Murphy. It was the quarterly return of the vouchers that was required. It would seem that the nature of the occupation of Murphy- and his clerk, which was without intermission, should excuse the-remissness in omitting the reports. The' danger of loss by capture was not so imminent as to stimulate great activity, and much can be blamed now that circumstances then existing would have palliated.

Wo think he is entitled to a decree authorizing a credit for. the captured vouchers and money to the extent of $4,003 60, and it is so •ordered.  