
    (5 Court of Claims R., p. 134; 13 Wallace R., pp. 35, 38.)
    Thomas Clyde v. The United States.
    
      On the'appeals of both Parties.
    
    
      A steam ferry-boat is chartered by a quartermaster acting by proper authority. The written contract specifies an express consideration of $115 a day. Five months afterward, the boat being still in the service under the charter-party, the' Quartermaster-General orders: ‘‘The charter of the Tallaeoa is disapproved. ” “She will be paid for only at the rate of $75 per day from the date of her charter so long as she may bo retained, in the service. The excess of $40 per day already paid will be deducted on the present settlement for her services.” The owner protests against the reduction, hut allows the boat to remain in the service. The excess over $75 a clay already paid him is deducted from the next payment. So gives no release, but signs a receipt not under seal, whereby it appears that only a part of the debt is paid for the whole, but which says “ in full of the above account.” The Court of Claims decides that where a charter-party provides a fixed compensation the Quartermaster-General has no arbitrary power to reduce it as to the period already past; but where the owner allows the vessel to remain in theservice after the charter is disapproved by the Quartermaster-General, and a reduction of compensation ordered, he can recover thereafter only at the reduced rate. .Judgment for the claimant. 'The defendants appeal.
    
    
      The petition also sets forth another cause of action. The Government objects that “the claim was never presented to the War Department for adjustment.” The rules of the court require that "whore the claim is such as is ordinarily settled in any Executive Department, the petition shall show that application for its allowanco lias been made” “ without success.” The Court of Claims sustains the objection. Judgment for the defendants. The claimant appeals.
    
    I. On the principles determined by the Supreme Court in Child, Frail ‡ Fox Case, (ante, p. 209,) where the Quartermaster-General disapproves a charter-party and orders the compensation of the vessel to be reduced for the whole period of her service, past as well as future, and refuses to pay moro, the case is clearly one of dispute, notwithstanding that the Quartermaster-General allowed the. vessel- to remain in the service five mouths before razeeing the rate; and that the charter-party expressly fixed the rate of compensation; and that the owner was paid for a time at the agreed rate. Under these circumstances giving a receipt in full is clear evidence that the owner agrees to take the balance allowed by the Quartermaster-General in satisfaction* of the debt assured by the charter-party. It concludes him from malting any further demand. Field, J., dissenting.
    
    II. The Court of Claims cannot restrict its own jurisdiction by its own rules. A rule which requires the petition .to show that a claim “ordinarily settled in any Executive Department” has been submitted to that Department “for its allowance” “ without success, ” is not a rule of practice, but an additional restriction upon the jurisdiction of the court. The jurisdiction is established by statute; which only requires that a party shall have a claim, not that the claim 'shall first go through an Executive Department.
    
      Findings of the Goiirt of Claims.
    
    
      1. On bio vein ber 16, 1862, and during tbe emergency caused by tbe removal of tbe army of the Potomac to Falmouth, tbe Tallacca, a steam-vessel owned by tbe claimant, was chartered by Captain C. B. Ferguson; an officer in tbe Quartermaster’s Department, acting, at Alexandria;, "Virginia, under tbe instructions of General Fucker, the chief, quartermaster at Washington. Tbe charter-party set forth and declared upon in tbe petition was formally executed, and was immediately transmitted to tbe Quartermaster-General by Captain Ferguson; tbe agreed compensation of $115 a day, tbe court also finds, was tbe reasonable value of her services.
    If. Tbe boat continued iñ tbe service of tbe Government, and performed all tbe stipulations of her charter, until J uly 31, 1863. She was paid at,the agreed rate up to tbe last of February, 1863, without objection or question being raised on either side. But on IVIay 13 tbe Quartermaster-General disapproved of the charter-party'of tbe‘Tallacca by tbe following order: . • ,
    “Tbe charter of tbe Tallacca is, disapproved by tbe Quartermaster-General. She will be paid for only at tbe rate of •seventy-five dollars ($75.00) per day, from tbe date of her charter, Nov. 16th, 1862, so long as she may be retained in tbe service. Tbe excess of forty dollars per day already paid in former settlements, from November 16th, 1862, to February 28th, 1863, will be deducted bn the present settlement for her services from March 1st, 1862, to April 30tb, 1863, less six days, from March 31 to April 6, 1863, lost in making repairs.”
    The claimant was notified of the contents of this order, soon after its receipt by Captain Ferguson, and during- the month of May, 1863. lie refused to consent to the reduction, and offered to file a paper to that purport, or to receive money under a written protest. But the claimant has failed to show whether, on being- notified of this order, he determined to allow his boat to remain in the service at the reduced rate, or sought to take her out of it, and terminate her employment by the Government. The boat, in fact, remained in the service until July 31,1S63, with or without his consent.
    III. No payment was made for the services of the vessel until the 1st of December, 1863, when the defendants’ quartermaster stated an account, which was paid and receipted for as follows:
    . “ The United Staten to Thomas Clydey “1863. Db.
    “ July 31 sfc. For services of the steamer “ Tallacca,’' employed transporting troops and ■ supplies, from March .1 to July 31,
    1863, inclusive, 153 days, at $75 per day..$11,475 06
    “Deducting for six days lost in making repairs, as per report Colonel D.
    H. Bucker, from March 31 to April
    6, 1863 .. .'. 450 00
    11,025 00
    “Deduct for two days lost in June,
    ¡863 . 150 00
    10, 875 00
    “Deducting excess of $40 per day already paid in former settlements, from November 16,1862, her date of charter, to February 28,1863, as per letter of instructions dated Quartermaster-General’s Office, May 13,^
    1863 . 4,200 00
    $6, 675 00
    
      “I certify that the above account is correct; that the services were rendered as stated; and. that they were necessary for the public service.
    (Signed) “ O. B. FEKGUSON,
    “ Gap., A. Q. If., U. 8. A.
    
    “ Keceived, at Alexandria, Virginia, the 1st day of December, 1863, of Captain C. B. Ferguson, assistant quartermaster, United States Army, the sum of six thousand'six hundred and seventy-five dollars, in full of the above account.
    (Signed in triplicate.)
    (Signed) “ THOM. CLYDE.»
    
      Messrs. G. F. Peel: and T. J. Durant for the claimant.
    
      Mr. Solicitor-General Bristow and 2 fr. Assistant Attorney-General Hill for the United States.
   Mr. Justice Bkadley

delivered the opinion of the court.

tn the first of these cases, the facts found were, that on the lGth of November, 1862, the ferry-boat Tallacca, owned by the claimant, was chartered by Captain Ferguson, an assistant quartermaster of the United States Army, at the rate of $115 per day, for every day she might be employed in the service of the United States, and until returned to Alexandria, where she was lying; and that the said boat continued in the service of the Government from the date of the charter-party until the 31st of July, 1863, and was paid at the agreed rate up to the last of February, 1863, without objection; but that, on the 13th May, 1863, the Quartermaster-General disapproved of the charter-party by the following order: “The charter of the Tallacca is disapproved by the Quartermaster-General. She will be paid for only at the rate of $75 per day from the' date of her charter, so long as she may be retained in the service. The excess of $40 per day already paid will be deducted on the present settlement for her services-from March 1, 1863,” &c. The claimant was notified of the contents of this order during the' month of May. He refused to consent to the reduction, but has not shown whether, on being notified of this order, he determined to allow his boat to remain in the service at the reduced rate, or sought to take her out of it. The boat in fact remained in the service until July 31, 1863. No further payment was made until December, 1863, when the quartermaster stated the account at the reduced rate, deducted the excess of $40 per day paid on the former settlements, and paid the claimant the balance. The claimant receipted for this balance as u in full of the above account.”

Upon these facts the Court of Claims decided that the claim■ant was entitled to be paid at the rate named in the charter-party until he received notice of the reduction made by the Quartermaster-General, and, after that, at the reduced rate.

In this we think, on the principles determined by this court in the late case of the United States vs. Child and ah, the Court of Claims erred. From the time that the order of the 'Quartermaster-General was made, disapproving of the charter-party, and razeeing the rate for the whole period of service, the •case was clearly one of dispute, at least, if not one of acquiescence on the part of the claimant. Notwithstanding' this order he permitted his boat to remain in the service until the 31st of -July, knowing the change of terms which the Quartermaster-General had made. It cannot be pretended that there were two lettings, or two charter-parties, of the vessel. There was only one; and as to this one the Government determined to allow one rate, and the claimant insisted on’another. The ■Government stood on the order of the superior officer, and insisted that this should govern the contract; the claimant insisted the contrary. Under these circumstances the final -determination of the latter to take the balance of the account as made out on the basis contended for by the Government, .and his giving’ a receipt in full is clear evidence that he agreed to take that balance in satisfaction of the claim; and this fact, ¡under the circumstances of the case, concludes him from making any further demand. The judgment is, therefore, reversed -as to this count.

In the other appeal, arising upon the second count, in which the claim was for the use of the barge William E. Hunt, the Court of Claims dismissed the claim on the ground that it was not presented in conformity with a rule of practice which the ■court then had, but which lias since been abrogated. This rule required that where the case was such as is ordinarily settled in ■any Executive Department, the petition should show that application for its allowance had been made to that Department, and without success, and its decision thereon. However useful and proper such a rule may liave been prior to tlie enactment of the law passed June 25, 1868, which requires the Attorney-General to obtain from the proper Department, and the Department to furnish such facts, circumstances, and evidence as it might be in possession of in relation to any claim prosecuted in the Court of Claims, we are of opinion that it was not competent for the Court of Claims to impose it as a condition of presenting a claim in that court. Instead of being a rule of practice, it was really an additional restriction to the exercise of jurisdiction by that court. It required the claimant to do what the acts giving the court jurisdiction did not require him to do before it would assume jurisdiction of his case.

The act of 1855, which created the court, declares that it shall “ hear and determine all claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States, which may be suggested to it by a petition filed therein.’1 The rule adopted by the court required that the claimant .should not only have such a claim as stated in the act, but should have first gone through the Department which might have entertained it, before he would be permitted to x>roseeute in that court. This was establishing a jurisdictional requirement, which Congress alone had the power to establish.

This judgment of dismissal must, therefore, be reversed.

The judgment of the Court of Claims is reversed upon both appeals, and the record is remitted with directions to enter a decree of dismissal as to the first count in the petition, and proceed to a hearing on the second count.

Mr. Justice Field,

dissenting:

I dissent from so much of the judgment of this court as decides against the claim of the appellants for the amount stipulated in the charter-party.  