
    John W. Green et al., executors, etc., v. The United States.
    
      On the Proofs.
    
    
      In October, 1861, a person domiciled within the insurrectionary district leases a building in Alexandria to the Quartermaster Department for.a hospital. The government continues in possession until the end of the war, butrefuses to pay rent because the lessor will not talce the oath of allegiance. At various times the lessor applies at the Quartermaster-General's Office for papers showing authority for the renting of the premises. Search is made, but none are found until December, 1877. The lessor, supposing that none existed and that his lease teas void unless authorized by the Quartermaster-General, neglects to bring his action until after the discovery of the papers. The defendants set up the statute of limitations.
    
    I. As to a person domiciled and resident within the State of Virginia, and con structi veiy an enemy d tiring the rebellion, the statute of limitations was suspended until the courts of the United States were reopened to the inhabitants of Virginia by the Proclamation 2d April, 1866 (14 Stat. L., 811).
    II. The running of the statute of limitations is not suspended by the fact that papers which would have established the validity of the claim are mislaid in a public office, and that, until found, the claimant was not aware that he possessed a good cause of action.
    
      III. Where thesuit is founded upon a fraud the statute of limitations does not begin to run until the discovery of the fraud, hut where an action is founded on a contract, ignorance on the part of the plaintiff as to the existence of his right of action does not suspend the running of the statute.
    
      The Reporters’ statement of the case:
    The foil owing are the facts of this case as found by the court:
    I. At the times hereafter referred to, James Green, the testator of the claimants, was the owner of certain real property in Alexandria, Va., and of the hotel thereon situated, known as the Mansion House. He was also a resident of Alexandria, domiciled within the Confederate lines.' The defendants, by their military officers, occupied and used the said hotel and premises for the purposes of a military hospital from the 11th November, 1861, until the 30th June, 1865, and acquired the use and occupancy of the premises in the manner set forth in the next finding.
    II. On the 30th October, 1861, the Surgeon-General of the Army addressed the following communication to the Secretary of War, which was approved by the Secretary, and carried into operation in the manner indicated by the indorsements following it:
    “Surgeon-General’s Oeeioe,
    “Oct. 30th, 1861.
    “ Sir : In obedience to instructions from the Secretary of War, dated the 28th inst., I proceeded to Alexandria, and after a careful examination have selected the Mansion House in that city, from its commodious and enlarged accommodations, its perfect ventilation, and proximity to the railroad, as the best adapted site for an hospital for the wounded and sick soldiers.
    “It will accommodate about one thousand patients, is well supplied with gas and water, and does not require as many medical officers and appliances as smaller and more isolated buildings would render necessary.
    “I would recommend its immediate occupancy.
    “Very respectfully, your ob’d’t serv’t,
    “C. A. Finley,
    “ Surgeon- General.”
    
    “Hon. S. CAMERON,
    
      “Secretary of War.
    
    (Endorsed as follows:)
    “Approved:
    “Simon Cameron,
    “ Secretary of War.
    
    “War Dep’t, Oot. 31, ’61.”
    
      “Bespectfully referred to tbe Quartermaster-General, with a request that the building' within named be obtained, and turned over to this department for hospital purposes as soon as practicable.
    “C. A. Finley,
    
      “ Stirg. Geni.
    
    “S. G. Office, Nov. 1, 1861.” •
    “Bespectfully referred to Col. B. Ingalls, A. Q. Master, U. S. Army, who will take measures to rent the Mansion House at Alexandria, and put it in proper condition for hospital purposes.
    “ By order:
    “E. J. Sibley,
    
      “Lt. Col., TJ. S. A., Dept. Qr. Mr. Geni.
    
    “ Qr. Mr. Geni. Office, Nov. 5, 1861.”
    “Oeeice oe Asst. Qr. Master,
    “ Arlington Depot, Ya., Nov. 8, 1861.
    “Lieut. Ferguson will take measures to procure and place this building at the disposal of the Medical Department at the earliest moment possible in the manner indicated.
    “Bueus Ingalls,
    
      “Lt. Col. & A. D C., A. Q. Hi.”
    “ Oeeice oe Asst. Quartermaster,
    
      “Alexandria, Va., Nov. TAth, ’61.
    “Bented Mansion House and transferred it to Asst. Surg. Sheldon, Nov. 11th, at a monthly rental of $750.
    “C. B. Ferguson,
    
      “2nd Lt, 10th Infthj, A. A. Q. M., TJ. S. Army.”
    
    The lease indicated by the last indorsement was an oral agreement entered into by the owner, James Green, and Lieutenant Ferguson.
    Subsequent to this agreement and to the entry of the defendants and their occupancy, the Quartermaster-General addressed the following letter to Col. Bufus Ingalls, who was the officer ot the Quartermaster’s Department having charge of the business of the department in Alexandria, and the following correspondence took place between the Quartermaster-General’s Office and Colonel Ingalls:
    “ Q’rm’r-Gen’ls Oeeice,
    “ Washington, November 20th, 1861.
    “Colonel Bueus Ingalls,
    
      “A. Q. M., TJ. S. A., Alexasidria:
    
    
      “ Colonel : Please return to this office the letter of the Surgeon-General, approved by the Secretary of War and referred to you, recommending that the Mansion House, Alexandria, be taken for hospital purposes, as there is no complete record of the paper, with its. endorsements, here.
    “Also inform this department upon what terms the bird ding has been secured.
    “M. O. Meigs,
    , ‘ ‘ Q’rm’r- General.”
    “ ASS’T QUARTERMASTER’S OEEICE,
    
      “Arlington Depot, Vaa., November 25th, 1861.
    “ General : I have the honor to transmit herewith the letter of the Surgeon General called for in a letter from your office dated 20th instant.
    “The rent of building is shown in the endorsement of Lieut. Ferguson, A. A. Q. M. at Alexandria.
    “Col. Ingalls is absent.
    “Very respectfully, your ob’d’t servant,
    “Ohas. B. Wagner,
    “ Gapt., A. Q. M. VoVs.
    
    “Gen’l M. C. Meigs,
    
      " Q’rm’r-Gen’l, TJ. 8. A., . Washington, D. G.”
    
    “ Q’rm’r Gen’l’s Opeice,
    “ November 30, 1861.
    “Oapt. O. B. Wagner,
    “A. Q. M., Vols., Arlington Depot,
    
    (Through Gen’l McClellan’s h’dq’rs) :
    “Captain: Your letter of the25th inst., enclosing the letter of the Surgeon-General recommending the Mansion House, in Alexandria-, for a hospital, called for by letter to Captain In-galls, has been received:
    “The amount fixed for the rent of this house is extravagant. To whom does the property belong"! Are the owners known to be loyal ?
    “E. S. Sibley,
    
      “Dep’ty Q’rm’r Gen’l.”
    
    The reply of Colonel Ingalls to the last communication from' General Sibley cannot be found; and it does not appear that this correspondence was communicated or in any way made known to James Green. No further expression of approval or disapproval concerning the lease was made by the Quartermaster-General.
    III. After the defendants had entered into the occupancy of the premises, as set forth in the preceding finding, Lieutenant Ferguson and his successor in charge took up and reported the same to the• Quartermaster-General on,his monthly report, according to Form No. 2, Quartermaster’s Department, Army Regulations 1863, p. 174, at the monthly rent of $750, and the building was so reported, during its entire occupancy, except for the month of November, 1863, when it seems to have been accidentally omitted from the assistant quartermaster’s monthly report.
    About the time the first monthly rent became due, the owner applied to Lieutenant Ferguson for the same. That officer informed him that he whs required to' take an oath of allegiance to the Government of the United States before the rent could be paid. The owner refused to take the oath, for reasons given by him, and the rent was not paid. Subsequently he applied for the rent to the Quartermaster-General, through his brother, Edwin Green, to whom on the 28th March, 1864, the Quartermaster-General addressed the following letter:-
    “War Department,
    “ Quartermaster-General’s Oeeioe,
    “ Washington, D. 0., March 28, 1864.
    “Mr. Edwin Green,
    
      “Trustee, No. 504 11th street, Washington City:
    
    “ Sir : Your letter of the 17th instant, in reference to the claim of James Green for rent of the Mansion House in Alexandria, "Virginia, alleged to have been used for hospital purposes since November, 1861, has been received.'
    “Upon reference of the case to the asst. qr. master at Alexandria, it has been ascertained that compensation for the use of the property in question has not been paid, because Mr. James Green is believed to be disloyal to the United States, and has refused, and still refuses, to take the oath of allegiance.
    “Under the circumstances no rent can be allowed or paid for the use of the property owned by Mr. Green.
    “ Th e deed of trust dated July 28,1863, and Mr. James Green’s letter to you of the 3d ultimo, received from you on the 5th instant, are herewith returned. , '
    “Yery respectfully, your obedient servant,
    “M. O. Meigs,
    “ Quartermaster- General?
    
    On or about the 5th of May, 1865, the said owner took and subscribed the following oath of allegiance:
    “State oe Virginia,
    
      “Alexandria Oownty, to loit:
    
    “I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the laws made .in pursuance thereof, as the supreme law'of the land, anything in the constitution and laws of the State of Virginia, or in the ordinance of the convention which assembled at Richmond on the 13th day of February, 1801, to the contrary notwithstanding; and that I will uphold and defend the government of Virginia as vindicated and restored by the convention assembled at Wheeling on the 11th day of June, 1861, and that I have not since the first day of January, 1864, voluntarily given aid nr assistance, in any way, to those in rebellion against the Government of the United States for the purpose of promoting the same.
    “Alexandria, May, 1865.
    “James Green.
    “ Witness:
    “Administered by Lewis McKenzie, J. P.”
    No rent whatever has been paid by the defendants for the use and occupation of the Mansion House as before described.
    IV. Shortly after the close of the war and at various times thereafter, the claimant made application at the Quartermaster-General’s Office for all papers showing any authority given by the Secretary of War for renting the Mansion House in Alexandria for hospital purposes, and for any .paper of the same general purport, and likewise for any paper showing Lieutenant Ferguson’s authority from the Quartermaster-General to rent the property. Search was made for the same by the clerks of the Quartermaster-General’s Office without any such paper being found; and repeated applications were made by the attorney of James Green for a renewed search during a period' extending from the close of the war until December, 1877.
    In May, 1872, James Green also sent the following application to the Secretary of War, by whom it was referred to the Quartermaster-General, and ultimately to the accounting officers of the Treasury, as shown by the indorsement thereon:
    “Alex’A, Va., May 3,, 1872.
    “To Hon. William W. Belknap-,
    “ Secretary of War:
    
    “ Sir : 1 beg leave to call your attention to my claim against the United States and ask that you direct the payment thereof.
    “The government rented during the war my property, ‘The Mansion House Hotel,’ in the city of Alexandria, at seven hundred and fifty dollars per month, from the 11th day of November, 1861, to the 30th day of June, 1865. The property was greatly damaged over and above the ordinary wear and" tear, and tbe government had the damages appraised. I was never furnished with a statement of the appraisement, but am satisfied that it could not have been less than five thousand dollars.
    The rent amounted to. . $32, 750
    . Damages, say. 5, 000
    Mailing the total sum.:. $37, 750
    “I have never received one dollar of this amount, and as it stands to my credit on the books of the Quartermaster-General’s Office, and as there is no reason whatever why the same should not be paid to, me, I respectfully request that your honor will direct its payment as soon as possible.
    “ Very respectfully, your ob’d’t serv’t,
    “JAMES Green.”
    (Endorsed as follows:)
    “Respectfully returned to the Hon. Secretary of War. Attention is invited to the enclosed copy of endorsement to Hon. Elliott M. Braxton, M. O., Washin., D. O., on the subject, April 23d, 1872. The claim is a proper one for the consideration of the Southern Claims Commission.
    “M. C. Meigs,
    
      "Quartermaster-General, Bvt. Maj. GenHj U. 8. A.
    
    “Q. M. G. O., May 18, ’72.”
    “War Department, July 16, 1872.
    “Respectfully returned to the Quartermaster-General. The Commissioners of Claims hold that they have no jurisdiction in claims for rent. This claim, unless it arises out of a contract executed on the part of the government by its authorized officer, is excluded from settlement by the implied prohibition of the act of February 21, 1867, chap. 57. All the papers and evidence as to the lease will be transmitted to the accounting officers of the Treasury.
    “Wm. W. Belknap,
    
      "Secretary of War.”
    
    “ Respectfully referred to the accounting officers of the Treasury, and attention invited to the foregoing endorsement of the Secretary of War.
    “There are no other papers in the case here, and records do not show that a lease of the premises was ever formally executed.
    “ By order of the Q. M. General.
    ■ “M. I. Ltjdington,-
    “ Quartermaster, U. S. A.”
    « Q. M. G. O., July 31,1872.”
    
      James Green also applied to Congress for relief, and the chairman of the Committee on War Claims addressed the following' communication to the Quartermaster-General:
    “House oe Representatives,
    “ Washington, D. C., May 25,1876.
    “ Sir: A claim of James Green, of Alexandria, Ya., is pending before the Committee on War Claims, for the rent of the ‘Mansion House’hotel, alleged-to have been used by the TJ. S. Government for hospital purposes from Nov. ’ 11, 1861, to June 30, 1865, at a rental of $750.00 per month.
    “ Claimant alleges that no part of the claim has been paid. Will yon please give any information in your department relative to the validity or invalidity of this claim; also whether any part of the same has been paid.
    “JOHN R. Edén, '
    “ Chairman.
    
    “ To the Quartermaster-General, IT. S. A.”
    The Quartermaster-General replied to this communication on the 27tii May, 1876, and again on the 5th June, 1876, giving information concerning the unpaid condition of the rent, but making no mention of or reference to the communication of the Surgeon-General set forth in Finding II; nor mention of any other order or authority relating to the validity or invalidity of the claim.
    In December, 1877, one of the clerks in the Quartermaster-General’s Office, who had previously searched for the papers, while searching among a mass of old papers in the fifth story of the office, unexpectedly found the application of the Surgeon-General with the indorsements thereon set forth in Finding II. The existence of the paper and its contents then first became known to James Green or his attorney.
    CONCLUSIONS OE LAW.
    On the foregoing findings of fact, the court decides, as conclusions of law: . - •
    The claim accrued on the 3d April, 1872, and the petition not having been filed until the 14th March,-1881, the action is barred by the statute of limitations (Rev. Stat., § 1069).
    
      Mr. R. O. Claughton for the claimant:
    What is the position of the government in this case? ■
    Dbes it not seek to defeat the claimant’s right of action upon tbe ground that- it was not asserted within six years after it first accrued? Is it not proved that the cause of action was denied and concealed until after the expiration of the statutory period? Concede that the denial and concealment was not intentional, but the result of want of proper diligence in the transaction of the public business; will not that fact take the case out of the,statute? Will not this want of diligence be as effectual for that purpose as if. the United States had pleaded a fraudulent intent, or it had been proved? The Supreme Court has so decided, in a case where the statute of limitations was relied upon by the'gpvefnment. (United States y. Lippitt, 100 U. S., 668.) .
    “Has there been such acknowledgment of the debt as precludes the bar of the statute of limitations?”
    The War Claims Committee officially inform the Quartermaster-General that the claim, described in detail, is pending before said committee, and ask for information as to whether or not the. claim is valid; and the Quartermaster-General replies officially that the claim is valid, and that there is due and unpaid $32,000 standing to the credit of the claimant on the books of his department. Could there be a more absolute and unqualified acknowledgment, than that ? {Bell v. Morrison, 1 Pet.,'351.)
    Can there be any question that the government will be-bound by the acknowledgment of the officer who was authorized to make the contract, and by whom it ought to have been paid ?
    The Supreme Court, in the Wilder Case, held that if a partial payment had been made by a quartermaster which raised a presumption that it was made as part of a larger debt — that such partial payment made by a quartermaster would have bee$i an acknowledgment to take the case out of the statute. (United States v. Wilder, 13 Wall., 254.)
    Let it be borne in mind that the force and effect of the acknowledgment depend upon the deliberation and purpose with which it is made, and not upon the person to whom it is made. The question is, has the debtor within six years acknowledged the debt to be due and unpaid, and an existing liability; not to whom the acknowledgment was made.
    In the case of Olarlce v. Hooper (1 Bing.,. 480) it was held that a letter from the debtor - to any third person, that he still owed the debt, would have been sufficient. • “It matters npt to whom the acknowledgment is made.” (Angelí on Limitations, §§ 246,261.)
    “An acknowledgment made to a stranger will defeat the operation of the statute.” (Angelí on Limitations, § 269; Oliver v. Gray, 1 H. & Gill, 204; Whitney v. Bigelow, 4 Pick., 110; Soul den v. Van Benselear, 9 Wend., 293; St. John v. Garrow, 4 Porter, 223; Belton v. Pitts, 11 N. H., 170.)
    There are some authorities which hold that an acknowledgment made to an entire stranger will not be sufficient, but there is no authority which holds that an acknowledgment made to a party charged with the investigation of the validity of the debt — in the interest of the creditor, and for his relief — is insufficient.
    The only case upon this point decided by the Supreme Court of the United States is the case of Moore v. The Banlc of Columbia (6 Pet., 86), and in that case the court based its decision upon the character of the acknowledgment itself, and did not refer to the fact that it was made to a stranger.
    It appears, then, that the government ought not to profit by the plea of the statute of limitations in this case, because to allow it so to do would be to permit the government to profit by its own wrong.
    Let us rise to a higher plane. In what position does this plea place the government? Is it not this — that the government, having conferred the right to sue in this court within a certain period, seeks to take advantage of a failure to exercise that right within that period, for which failure the government is alone and altogether responsible?
    
      Mr. John 8. Blair (with whom was the Assistant .Attorney-General) for the defendants:
    The alleged claim first accrued at the very latest on the 1st July, I860. The petition was not filed until March 23,1881. Section 1069 provides that no disability other than those therein enumerated shall prevent any claim being barred, and claimant alleges none so enumerated. (Kendall’s Case, 14 O. Cls. B.., 122.)
    No express power is given to any executive officer of the United States to waive the force óf the statute. If any implied power exists — and we contend there is none such except the power of the head of a department to transmit a claim — it inberes not in the power to contract but in the power to pay; for the acknowledgment derives its force not from the original contract, but from the new contract or constructive promise/to pay implied'in and morally resulting* from, the acknowledgment. (Angelí on Limitations, § 208; Bell v. Morrison, 1 Pet., 351, per Story, J., 362; Moore v. The Bank of Columbia, 6 Pet., 86, per Thompson, J., 93.)
    Independent of the alleged acknowledgment, it is contended by claimant that the failure of the United States to furnish him with evidence to sustain a suit, when no suit in fact was pending, entitles him torelieffromsectionl069. His right to demand •inspection of the files of any department we deny. The very furthest right he has is under section 1076, and his failure to put himself in a position to avail himself of that section constitutes his sole claim to relief.
    ■ The case of Bailey v. Glo.oer (21 Wall., 342) has no application. That was a case of fraud, and the concealment was of the cause of action. This is an action of contract; there is no concealment, merely an accident, such a one as might occur by the loss by any witness of a paper; the thing not disclosed is an item of evidence.
    No argument can be drawn from the doctrine of constructive or legal fraud, for the reason that the basis of this action is contract, and it will intimate a vast expansion of the limits of human knowledge for the law to presume that the Quartermaster-General could remember in 1872 an individual paper filed with him in 1861. '
   Nott,. J.,

delivered the opinion of the court:

' • This case presents the phenomenon of a meritorious cause of action and a vigilant claimant upon the one hand, with the bar of the statute of limitations upon the other. But the learned counsel for the claimanthas urged in an argument of great force and ingenuity that* notwithstanding the lapse of tóme, the statute does not bar a recovery, inasmuch as the claimant was prevented from bringing his action by tlie mistakes, negligences, and fraudulent concealments of the defendants’ officers; and he regards the case as coming within the spirit, if not the letter, of the decision of the Supreme Court in Bailey v. Glover (21 Wall., 342) and of the decisions of the same court in the cases of the Boston Banks (96 U. S. R., 30), Clark (id., 37), and Lippitt (100 id., 668).

To the end that we may the better do justice to this argument we will now review the facts, not as they actually existed, chronologically, but as they appeared to the claimant up to the time of the bringing of this action.

On the 11th November, 1861, au assistant quartermaster rented from James G-reen the chief hotel in Alexandria, capable of containing 1,000 patients, for the uses and purposes of a military hospital, at a stipulated reut of $750 a month.

Mr. Greeenimmediately put the defendants in possession, a.nd the occupancy and user continued until the 30th June, 1865.

About the time the first monthly rent became due, Mr. Green applied to the quartermaster for the payment thereof. That, officer informed him that he was required to take the oath of allegiance to the govornment before the rent could be paid. For reasons which he stated, Mr. Green declined to take the oath at that time, and the rent was not paid.

Tn March, 1864, Mr. Green applied through his brother, a resident of Washington, to the Quartermaster-General for payment of the rent; and to his communication the Quartermaster-General replied, on the 28th March, 1864, “that compensation for the use of the property in question has not been paid because Mr. James Green is believed to be disloyal to the United States, and has refused and still refuses to take the oath of allegiance.”

On the 5th May, 1865, Mr. Green took the oath of allegiance, and on the 30th June following, the defendants vacated and surrendered the premises.

During the December term, 1867, this court decided that a similar lease of property situated on insurgent territory, likewise entered into by an assistant quartermaster, was void (Filor’s Case, 3 C. Cls. R., 25); and during the December term, 1869, the Supreme Court affirmed the judgment (9 Wall., 45), holding, moreover, that such a lease was not binding upon the government until approved by the Quartermaster-General, and that property so acquired and held must be regarded as taken by military appropriation, and the Court of Claims as inhibited from exercising jurisdiction by the Act tíh July, 1864 (13 Stat. L., 381).

Shortly after the close of the war, Mr. Green employed counsel, and through his counsel applied at the-Quartermaster-General’s Office for the orders or authority under .which the assistant quartermaster had acted when renting his premises; and after the decisions in the Filor Case, bis counsel perceiving that no action could be maintained, either for the use and occupancy or on the assistant quartermaster’s agreement, urged a renewed search. But no authority of any description could be found.

Thus the matter stood until May, 1872, when Mr. Green applied by letter to the Secretary of War, calling attention to his claim and requesting its investigation and payment; which communication the Secretary of War referred to the Quartermaster-General. Mr. Green subsequently petitioned Congress for relief, and the Committee on War Claims wrote to the Quartermaster-General in May, 1876,, “for any information in your department relative to the validity or invalidity of this claim.” In consequence of these communications, the Quartermaster-General and -his assistants made several reports, one to the accounting officers of the Treasury and others to the Committee on War Claims of the House, which it is needless to quote, but from which it might well be inferred and was inferred that‘no papers whatever existed that would show authority in the assistant quartermaster for the renting of the claimant’s premises. It is not pretended by the claimant’s counsel that actual or intentional fraud pervaded these statements, but it is insisted that they constituted at law a fraudulent concealment of the claimant’s right of action; that without such authority Mr. Green could not maintain an action, and that so long as such authority was concealed or withheld from him' by the adverse party, his claim or cause of action did not accrue, and the statute of limitations did not begin to run.

In December, 1877, one of the clerks in the Quartermaster-General’s Office, who had previously searched for the papers, while searching among a mass of old papers in the fifth story of the office, unexpectedly found the application of the Surgeon-General, with the indorsements thereon, set forth in Finding II, which together constituted an authority of the highest and most unequivocal character for the assistant quartermaster’s action in renting the premises. The existence of the paper and its contents then first became known to James Green or his attorney; and within 6 years from the discovery of this paper, that is to'say, on the 14th of March, 1881, the claimants brought this action, and their counsel, as before remarked, insists that -their cause of action did not accrue within the intent and meaning of the statute until it was thus made known to them, and that the case consequently is not barred by the statute of limitations.

Let us now classify these facts:

If James Green had been domiciled upon loyal territory it is well-nigh needless to say that the statute of limitations would have begun to run against each month’s rent from the day when an action might have been brought to recover it. But, as he was a resident and domiciled within the insurgent territory, he was, constructively, an enemy and unable to maintain an action, and the statute of limitations remained suspended until the courts of the United States were reopened to the inhabitants of Virginia by the Proclamation 2d April, 1866 (14 Stat. L., 811). (Sierra’s Oase, 9 C. Ols. B.., 224.)

On the 3d April, 1872, therefore, the statute of limitations barred an action unless the facts and circumstances relied upon precluded the statute from attaching to and operating upon the claim. The counsel for the claimants, as has been said, attaches great'importance to the representations made by the Quartermaster-General; but it must here be noted that all of those representations were made subsequent to the 3d April, 1872. The question therefore is, what fraudulent concealment was practiced during the period within which the statute would otherwise be running; that is to say, during a period of six years from the date of the proclamation 2d April, 18661

The answer to this question must be that no representations whatever were made to James Green, or to his counsel, during this period. All that appears is that at various times he made application at the Quartermaster-General’s Office for papers showing authority for the renting of the premises; that search was made, and none was found. His communication to the Secretary of War was not made until the 3d May, 1872, and the communication of the Committee on War Claims to the Quartermaster-General was not made until the 25th May, 1876.

We have so far considered the case upon the claimant’s theory of the law, viz, that no cause of action existed until the Quartermaster-General authorized the renting of the premises; and that the withholding of the approval from the knowledge of the claimant.operated as a fraud in law to suspend the running of the statute of limitations, or, in other words, that the claim did not accrue until the cause of action was made known. But we are n'ot satisfied that this theory is properly applicable to the facts of this case. In the first place, it is by no means certain that the approval of the Quartermaster-General could not be established by circumstantial evidence. ' The fact that the assistant quartermaster in charge made monthly reports, from December, 1861, to July, 1865, showing the renting of the property and the rate agreed to be paid, coupled with the fact that the renting was brought to the personal knowledge of the Quartermaster-General almost immediately, and with his communication'to Mr. Green of March 28, 1864, in which he intimates no disapproval of the lease and states explictly that the reason the rent is not paid is because the claimant has not taken the oath of allegiance, would go far to bring the case within the decision of the Supreme Court in SpeecPs Case (8 Wall., 77).

In the second place, it is not necessary for us to pass upon the question; but we are inclined to think that the case of Bailey v. Glover (supra), upon which the claimant’s counsel relies, does not govern this one. It is a familar principle of equity jurisprudence that where the suit is founded on fraud the statute of limitations does not begin to run until the dis-' covery of the fraud; and this has been incorporated in most modern statutes of limitations. Thus the New York Code of Procedure; 1849 (§ 71, subd. 6), provides:

“An action for relief on the ground of fraud in cases which heretofore were solely cognizable by the court of chancery, the cause of action in such case, not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.”

But the present action is not founded upon fraud, but upon contract; and our attention has been called to no case where ignorance on the part of the plaintiff "has been held to suspend the running of the statute. *

The court is doubly reluctant to reach au unfavorable conclusion, for we regard the claim as well established in law and justice, and the claimant’s personal conduct as free from the ordinary imputation of negligence, and his only, mistake as having been brought about by the agents or officers of the government; but our conviction is that the case is barred by the statute of limitations. . • .

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