
    William Smith v. The United States.
    
      On the Proofs.
    
    
      A paymaster without fault loses a package of. money. The Daymaster-General orders him to carry the loss on his accounts as money to'be accounted for and subsequently orders him to make good the loss. The officer comjjlies with both orders. More than six years after the payment of the money, he brings his suit for relief under the disbursing officers act.
    
    I.According to the general practico of tlie Treasury, accounts are never closed; and in neither tlie legal nor mercantile sense of tlie term, is an officer’s account with tlie Treasury ever “finally adjustednor is his official bond ever canceled or surrendered.
    II.The Disbursing Officers Act (Rev. Stat., ft 1059, 1002) was intended to he auxiliary to the general system of the Treasury, which enables the accounting officers to secure tlie immediate payment of balances due from disbursing officers and yet open and readjust their accounts at any time.
    III.Whether the statute of limitations bais a suit brought for relief under the Disbursing Officers Act (Rev. Stat., § 1059) is rendered doubtful ■ by the decision of the Supreme Court in Clark’s Case (93 U. S., 37).
    
      
      The Reporters statement of the case.
    The following are the facts as found by the court:
    I. In June, 1S69, the claimant was and still is a paymaster in the Army.
    II. On the 25th June, 1869, while the claimant was traveling to pay troops, he lost from a railroad train in motion near Bryan, Tex., a package of money containing $500. The loss was caused by the accidental falling of the claimant’s clerk, and was without fault or negligence on the part of the claimant, who was transporting the money in the manner in which paymasters’ funds are ordinarily transported in like circumstances, and exercising reasonable diligence in the care of the same.
    III. The claimant reported the loss through his superior officer to the Paymaster-General, who thereupon issued to him the following order:
    “These papers are all respectfully returned to Major Win. Smith, through Major Judd, as likely to be useful to Major S. in prosecuting hereafter his claim for relief before one of the only two ■ tribunals possibly competent to give it, to wit, Congress or the Court of Claims.
    “I have implicit confidence iu the character of Major Smith, and when the time comes will cheerfully render every assistance in my power to effect his release from the accidental loss incurred.
    “Meantime Major S., in the rendering of his official accounts, must carry the amount as part of‘balance on hand to be accounted for.’
    “B. W. BBICE,
    “P. ilf. G.
    
    “P. M. G. O., Aug. 11, 1869.”
    IY. In pursuance of the foregoing order, the claimant carried the amount of the before-described lost funds on his accounts as money iu his possession, noting, however, on his aceounts-current the loss in the following form :
    
      
      
    
    
      V. On tbe 13tk July, 1871, tbe Paymaster-General issued tbe following order:
    “War Department, “Paymaster-General’s Oeeice, “Washington, July 13,1871.
    “Major Wm. Smith,
    “ Pa/ymaster, U. 8. A., Weio Orleans, La.:
    
    “ Sir : 'After you bave completed your payments on tbe muster of Aug. 31,1871, you will, in accordance witli par. 13 of cir. 76, P. M. G. O., transfer to your chief paymaster tbe balance of tbe appropriation of tbe last fiscal year that may remain in your bands, including tbe sum of five hundred (500) dollars claimed by you to bave been lost at Bryan, Tes., June 25,1869.
    “This will not prejudice any claim that you may hereafter present for relief to tbe Court of Claims under act of May 9, 1866.
    “Very respectfully, your ob’d’t servant, “B. W. BBIOE, “Paymaster-General U. S. A.”
    
    In pursuance of this order, tbe claimant paid over to bis chief paymaster at New Orleans, on tbe 20tk December, 1871, all of tbe moneys remaining in bis bands and likewise $500 of bis own funds, representing and taking tbe place of tbe lost funds before described.
    VI. Tbe loss of $500 before described has not been allowed to tbe claimant by tbe proper accounting officers of tbe Treasury as a credit in tbe settlement of bis accounts.
    And upon tbe foregoing findings of fact tbe court decided pro forma, for tbe purpose of an appeal, as conclusion of law: “ Tbe claimant is entitled to a decree directing tbe proper accounting officers of tbe Treasm-y to allow to tbe claimant, as a credit in tbe settlement of bis accounts for funds lost at Bryan, Tes., June 25, 1869, tbe amount of $500.”
    
      Mr. John B. Sanborn for tbe claimant.
    
      Mr. John 8. Blair (with whom was tbe Assistant Attorney-General) for tbe defendants.
   Nott, J.,

delivered tbe opinion of tbe court:

This is a suit brought by a paymaster in tbe Army for relief under tbe Disbursing Officers Act (Rev. Stat., § 1059,1062) in regard to a package of Government funds lost without fault or negligence on bis part, but for which be has been held responsible by tbe Paymaster-General.

The loss occurred on the 25tb June, 1869; the claimant'was ordered to mate good the loss out of his own funds on 13th July, 1871; and he did so on the 20th December, 1871. But this suit for relief was not brought until the 18th April, 1878. llore than sis years, consequently, had elapsed from the time of the loss or from the time when the claimant was held responsible for the loss before the suit was brought; and it presents the question whether the statute of limitations is a bar to the relief given by the disbursing officers act. The point has also been made by the counsel for the defendants that the suit will not he after a disbursing officer has complied with his superior officer’s order and paid over the money or made good the loss.

The primary fact in the case upon which it must stand, if it can stand at all, is that accounts in the Treasury are never closed. In neither the legal nor mercantile sense of the term is an account between the Government and one of its officers ever “finally adjusted”, nor is his official bond ever canceled or surrendered. This practice is general, has been invariable since the organization of the Treasury, and is applicable to all officers as well as to those intrusted with the disbursement of the public funds. Thus, when it was determined in 1872 that judicial salaries were not subject to the deduction of the income-tax, the judges of the Supreme Court, like 'disbursing officers, were able to have their accounts at the Treasury restated, and the new balance which appeared owing to them (that is to say, the money which had been withheld from their salaries) paid over to them. In precisely the same manner, and with precisely the same effect, the Treasury would restate this officer’s account were there a decree to relieve him from this loss; and the credit being given to him in pursuance of the decree, whatever balance might then appear due would be paid to him; The balance would not necessarily be the amount of the decree. It might be augmented by other credits or diminished by new-found debits; but. the item decreed by the court would be allowed in the account, and the balance of the account, whatever it might be, would be paid to the officer.

A second fact constituting a part of the same Treasury system is, that the most stringent measures are provided by law to compel the immediate payment of balances found to be due to the' government. Thus in this case the pay of the claimant might have been stopped. He might have been court-mar-tialecl and dismissed tbe service for refusing to pay over tbe money as ordered; and an action might have been brought upon his bond, wherein he would have been precluded by statute from setting up as a defense the matters onwhichhenowrelies for relief. (Army Keg., 1860, § 1350; Tillou’s Case, 6 Wall., 484.)

Not identical with but somewhat analogous to this proceeding is the statutory provision (Kev. Stat., § 1063) which allows the head of an Executive Department to transmit a claim to this court for adjudication without .the assent of the claimant, and where with no voluntary action on his part the court acquires jurisdiction. In such cases it has been held that the statute of limitations cannot be set up as a bar to the action. (Winnisimmet Company’s Case, 12 C. Cls. R., 319.)

It is manifest that a system so convenient, so effective, and so expedient was in the minds of the lawmakers wdien the statute was framed. The statute was not intended to change or circumscribe the system, but to be auxiliary to it. Oases were occurring wherein such credits should be given to disbursing officers. The Treasury had no means for ascertaining the facts or determining the questions necessarily involved. To hold the officers responsible for losses without fault would be a wrong; to compel the- government to proceed against them and allow them to show their losses in defense would be inconvenient, circuitous, and expensive. Congress, therefore, devised the exceedingly simple and effective remedy of enabling this court to come to the aid of the Treasury by determining in such cases whether a certain item should or should not be credited to an officer in his account. This auxiliary remedy ingrafted upon the system left undisturbed the summary remedies whereby the government could proceed against defaulting officers and secure the immediate collection of balances due prima facie. It at the same time left untrammeled and uncurtailed the flexible system -whereby at the latest moment the accounting officers could charge the disbursing officer with a newly-discovered debit, and deduct it from the very item allowed by a decree of the court. It was not the purpose of Congress, on the one hand, to postpone the collection of balances apparently due to the government, nor, on the other hand, to allow the accounting officers by their promptitude to take away from a disbursing officer the very remedy which Congress gave to him by the statute. Kightly construed, the statute becomes a harmonious part of the system of Treasury accounts, and that system, as we have seen, is one that admits of the rectification of mistakes at any time and the entry of debits or credits in any stage of the proceeding's — a system which no more puts the claimant to his action to recover back this money than it put the judges of the Supreme Court to their action to recover money erroneously charged to them as a tax.

But while it is evident that the proceeding under the statute is an auxiliary remedy of the accounting system, and while it is also clear that, in the administration of the accounting system, an account is always liable to be restated, and in that way always open for correction, it is by no means certain that the right to the remedy will not be barred by the statute of limitations. The language of the statute, Every claim against the United States cognizable by the Court of Claims shall be forever barred ” (Bev. Stat., § 1059), is comprehensive enough to include this class of cases; and the same reasons against unlimited delay exist which would be applicable to an action founded on the same transactions to recover back money had and received. Nevertheless the Supreme Court has expressed a doubt in a recent case (Ciarle’s Case, 96 U. S. 37) whether this proceeding to correct an account is a claim against the United States within the meaning of the statute. “ The petition of plaintiff in this suit does not, in the just sense of the word, set forth a claim against the United States. It sets up a defense to a claim of the United States against theplaintiff,”saystlieSupremeCourt. Anditadds, “The statute, if applicable to this class of cases at all, did not begin to run until ” the claimant was held respon sible for the loss.

If both parties here stood upon an equal footing with respect to the right of appeal, we should deem it to be our duty to consider and decide this question now. But, in view of the fact that the claimant has no right of appeal, we should hardly feel, if we reached a conclusion adverse to him, at liberty to render a judgment that could not be reviewed in the face of the doubt which the appellate court has pointedly expressed. Accordingly, without expressing an opinion upon that point, we decide proforma, for the purposes of an appeal, that the statute of limitations does not bar the claimant’s action.

A decree will be entered in the usual form, directing the proper accounting officers of the Treasury to allow to the claimant as a credit in the settlement of his accounts for funds lost at Bryan, Tex. June 25, 1869, the sum of $500.  