
    SAMUEL H. SAVAGE, Executor v. THE UNITED STATES.
    [No. 14577.
    Decided April 2, 1888.]
    
      On the Proofs.
    
    
      A private citizen acts as ebargé d’affaires in Guatemala in 1856, 1858. The claim is presented in due timo tó the Treasury Department, which makes official inquiries of the State Department, hut the claimant does not present it to the State Department until 1885. It is then referred to this court under the Devised Statutes, §1063. The claimant was domiciled in Guatemala, but came to this country in 1870 and remained four months.
    I. If a claimant, beyond seas when the claim accrued, returned to this country, the statute of limitations (Rev. Stat., §1069) began to run, and was not suspended by his departure to foreign parts.
    II. Where a claim was not presented to the department in which it originated before it became barred by the statute of limitations, it can not be referred by that department to this court under Devised Statutes, § 1063, and the court does not acquire jurisdiction by such a reference.
    
      The Reporters’ statement of the case:
    The case went off on tlie point of jurisdiction, viz, that the claim not having been presented to the Department of State until after it was barred by the statute of limitations, the Secretary was without power to refer it and the court acquired no jurisdiction by the reference. The facts relating to this point will be found in Findings I and III. The following are the facts as found by the court:
    I. B/6nry Savage, a citizen of the United States, now deceased, testate, left the country in the year 1827 and took up his residence in Guatemala, where he continued to have his domicile until September, 1881, when he died. During that time he returned to the United States but onee, arriving about November, 1870, and remaining here about four months. The claimant is the executor of his will, having been duly appointed by the probate court of the county of Suffolk, Massachusetts, April 2, 1883.
    II. While so residing in Guatemala said deceased performed services described in the following letters:
    “DEPARTMENT OE STATE,
    Washington, February 13,1854.
    “ To the Honorable T. H. Bayly,
    “ Chairman of the Committee on Foreign Affairs,
    
    
      “House of Representatives:
    
    “ SiE: I have the honor to reply to that.portion of your letter of the 8th instant which refers to Mr. Henry Savage’s claim for compensation for diplomatic services in Guatemala since 1830, by the following statement:
    “ From early in 1830 until the close of 1833 Mr. Henry Savage corresponded with this Department in a diplomatic character, and as during that period there was no chargé d’affaires of the United States in that Kepublie, he assumed the functions of that agent.
    “It also appears that from the spring of 1842, say April or May, until the 17th November, 184S, Mr. Savage acted as chargé in the absence of any accredited agent to Central America. He has also corresponded with this Department from the 10th May, 1850, until the present time, during which period there has been no accredited representative of the United states to the Kepublie of Guatemala, and the archives and property ■of the former legation in Guatemala have been almost constantly in his care.
    “The only communication on record in the Department addressed to him in relation to his diplomatic correspondence is by Mr. Buchanan, under date of 3d June, 1848, which acknowl•edges the receipt of letters from the 18th June, 1842, to 20th March, 1848, and adds, ‘ These letters have furnished the Department with most acceptable information upon the subject of •• Central American affairs within the period mentioned, for whieh I offer you my hearty thanks.’
    “ It may be proper to state further t hat the information communicated to the Department by Mr. Savage has always been interesting and important.
    “ In view of these facts, and of the services rendered by Mr. Salvage to the interests of the United States and of their citizens, the Department, though not prepared to recommend that these services should be remunerated at the rate of a chargé’s salary, is still of the opinion that an allowance at the rate of $1,500 or . $2,000 per annum might, with entire propriety, be made for Mr. Savage’s diplomatic services during the several periods he has been in actual correspondence with the Govern.ment of Guatemala and with this Department.
    
      “ The memorial of Mr. Savage’s representative is herewith, returned.
    
      “ I have the honor to be, sir, very respectfully, your obedient servant,
    “W. L. Marcy.”
    “ Washing-ton, March 2, 1870.
    “Hon. Hajiilton Fish,
    
      Secretary of State:
    
    
      “ Sir: Will you do me the favor to furnish me, as agent of Mr; Henry Savage, of Guatemala, with a statement for the Comptroller of the Treasury, of the following facts:
    “ 1st. That the services performed by Mr. Savage, and mentioned by Mr. Marcy in his letter to the chairman of the Com. on Foreign Affairs of the House of Bepresentatives, dated Feb. 13th, 1854, in which he states that che (Mr. Savage) has also -corresponded with this Department from the 10th May, 1850, until the present time, during which,” &c., &c., did, in fact, continue to be performed by Mr. Savage after that date and until the arrival of Mr. Marling in Guatemala, Jan. 26th, 1855.
    “2d. That Mr. Savage was subsequently put in charge of the legation by Mr. Marling, and performed duties similar to those performed by him during the several periods mentioned by Mr. Marcy as above until the arrival of Mr. Beverly L. Clarke, being from May 7th, 1856, until Sept. 14th, 1858.
    “ 3d. That the several terms during which the legation was left in charge of Mr. Savage, including those mentioned by Mr. Marcy, were as follows:
    
      
    
    “As evidence of these several dates, I enclose an official certificate of Hon. Fitz Henry Warren, made when minister in Guarem'ala.
    “4th. That the portion of this time (fourteen years and five months) for which the Court of Claims, relying on the letter of Mr. Marcy, above referred to, awarded Mr. Savage compensation at the rate of $1,500 per annum, does not stand on any different footing from the remainder of the tune, and that the same reasons exist for paying Mr. Savage compensation for the remaining three years -eleven months and six days of the aboye-mentioned period of service as for that portion of it for which, he has received a judgment from the Court of Claims.
    “ I enclose a copy of Mr. Marcy’s letter above referred to.
    “ By complying with this request you will enable a deserving public servant to obtain compensation to which he is justly entitled.
    “I am, with very great respect, your obedient servant, etc.,.
    “Lebiuel Shaw.”
    “DEPARTMENT OE STATE,
    
      11 Washington, March 3, 1870.
    “ Lemuel Shaw, Esq.:
    “ Sir : I have received your letter of yesterday, requesting information as to Mr. Henry Savage’s services as acting chargé d’affaires of the United States at Guatemala.
    “In reply I have to inform you that the dates mentioned in the certificate as to the period of those services, which accompanied your letter, under the hand and seal of Mr- Fitz Henry. Warren, late United States minister there, have been compared with the dispatches from the legation on file in this Department and have been found to be correct.
    “ Mr. Savage’s services were, throughout the periods in which he acted as. chargé d’affaires, of the same character as those mentioned in the letter of Mr. Marcy to the chairman ot' the Committee on Foreign Affairs of the House of Representatives of the 13th of February, 1854, to which you refer, and merit compensation at the same rates as therein recommended.
    “Mr. Warren’s certificate is herewith returned.
    “I am, sir, your obedient servant,
    “Hamilton Fish.”
    The following is a copy of Mr. Warren’s certificate referred to in the foregoing letters:
    “Legation oe the United States,
    “Near the Republic oe Guatemala,
    “ Guatemala, July 22, 1868.
    “I, Fitz Henry Warren, minister resident of the United States of America at Guatemala, do hereby certify that I have examined the records of the legation of theU. S. A., now in my custody, and find that Henry Savage from early (say Feb.) in 1830. was in correspondence with the Department of State at Washington, and acted as chargé d’affaires till November 6th, 1833, find that there was no chargé d’affaires of the U. S. A. here at the time.
    “ It also appears that from the 26th of March, 1842, until the 17th of November, 1848, he acted as chargé in the absence of any accredited agent of the D. S. here, and corresponded with the Department of State. -
    “In the same manner he acted as chargé and corresponded with the Department of State from the 19th June, 1849, until 26tb January, 1855, no accredited agent being here during the period.
    “ I also find that he again was in charge of the legation and acted as chargé d’affaires from May 7th, 1856, till September 14th, 1858, in the absence, likewise, of any accredited agent of the U. F. A.
    “ In testimony whereof I have hereunto subscribed my name and affixed the seal of the legation of the TT. S. of America, at the city of Guatemala, this day, July 22d, one thousand eight hundred and sixty-eight, and of the Independence of said States, the ninety-second.
    [seal.] “ Fitz Henry Warren.”
    III. On the 2d day of March, 1885, the claimant, by his attorney, addressed the following communication to the Secretary of State:
    “Washington, D. 0., March 2,1885.
    “ To the Secretary oe State :
    “ I have to inclose herewith certain papers relating to the claim for services in your Department of Henry Savage, now deceased, and call for payment thereof to his executors.
    “Very respectfully,
    “Enoch Totten,
    
      uAtt,y, (fee., cfec.,r
    On the 3d day of March, 1885, the Secretary of State transmitted said claim to this court, with said demand made by Mr. Tottén, and said letter from Mr. Secretary Fish to Mr. Shaw,, by the following letter of transmittal:
    “DEPARTMENT OE STATE,
    “ Washington, March 3,18851
    “ To the honorable the fridges of the Court of Claims,
    
      Washington, City, D. C.:
    
    “ Samuel H. Savage, as executor of the last will and testament of Henry Savage, deceased, has demanded payment of a claim heretofore presented and made against it for services rendered for the United States, at its request, as chargé d’af-faires for the United States at Guatemala, from May 7, 1856, to September 14,1858, which claim involves disputed facts and controverted questions of law, and the amount thereof exceeds the sum of $3,000.
    “For these reasons, and by virtue of the authority in me Vested by the provisions of section ten hundred and sixty-three (1063) of the lievised Statutes of the United States, the san) claim of Samuel H. Savage, executor as aforesaid, with all the vouchers, papers, proofs, and documents pertaining thereto, are hereby transmitted to the Court of Claims, to be there proceeded in according to law and the provisions of the said section 1063 of the Revised Statutes.
    “ I have the honor to be, sir, your obedient servant,
    “ Feed’s T. Frelinghuysen.”
    IY. On the 30th of October, 1855, said deceased presented his petition to this court, claiming compensation for the services mentioned' in Finding I, up to January 26, 1855, and on. the 6th of March, 1865, the court rendered judgment in his favor at the rate of $1,500 a year previous to January 26, 1855 (1 O. Cls. R., 170). Said services from. May 7,1856, to September, 1858, were of equal value a year as those previously performed, and have never been paid.
    Y. The following correspondence occurred between the parties.named, at the respective dates of the letters:
    “ Boston, July 30,1868.
    “ Hon. Hugh McCulloch,
    “ Secretary of the Treasury :
    
    “ Sir : Mr. Henry Savage, an American citizen, residing in Guatemala, was employed by the United States to perform services of a diplomatic nature in the absence of more regularly appointed diplomatic agents.
    “Mr. Savage at different times applied to the Government for compensation, and after appropriations had been made for his relief by both houses of Congress (not, however, during the same session), his claim was referred to the Court of Claims by act of March 3,1855. He filed his petition in that court in 1855, and, after a full argument of the claim, the court decided that he was entitled to be paid at the rate of $1,500 per year for fourteen years and five months of service ($21,625), and rendered judgment in his favor for that amount March 6, 1865; and that sum was paid to me, as Mr. Savage’s agent and attorney, in coin, in April, 1865.
    “ In 1855, when Mr. Savage filed his petition in the Court of Claims, he was not in the service of the United States, and judgment was awarded to him for services ending January 26, 1855, when he was superseded by Mr. Marling. After filing the petition, viz, in May, 1856, Mr. Marling left Guatemala, and Mr. Savage was again entrusted with the duties of chargé des affaires at Guatemala and San Salvador, in precisely the same manner as he had been previously entrusted with them upon the departure of Mr. Marling’s several predecessors, and performed the same duties for the United States and under the same authority as during those previous periods for which the court awarded him $1,500 per annum.
    
      “Mr. Savage continued in the employ of the United States from May 7, 1856, to Sept. 14, 1858 (say two years and four months), and has recently sent to me an official certificate of Hon. Fitz Henry Warren, the present minister of the United States, of the fact and duration of this period of service; and has requested me, as his attorney, to make application for payment therefor.
    “I presume there can be no doubt of the fact that the United States is indebted to Mr. Savage, and that if he should make application to the Court of Claims that court would award him the sum of $3,500, in accordance with their previous judgment of a precisely similar claim.
    “I now write to inquire if this sum claimed, $3,500, in coin, can be paid to me as Mr. Savage’s attorney, upon my filing Gen. Warren’s certificate. The judgment in favor of Mr. Savage and my power of attorney were filed with the War Department in 1865, in the former case. I send for reference a copy of the evidence used in the Court of Claims, and of the brief of the claimant, and will be very much obliged to you if you will give directions that information and instructions should be sent to me as to the course I must pursue for Mr. Savage to procure payment of his claim, and hope that you will direct it to be paid without subjecting Mr. Savage to the delay and expense of another suit in the Court of Claims.
    “I remain, with great respect, your ob’t servant, &c.,
    “LeMtjel Shaw.”
    “Treasury Department,
    “ Comptroller’s Oppioe,
    “ August 4, 1868.
    “Hon. William Hunter,
    
      “Acting Secretary of State:
    
    “Sir: I have to request that you will inform this office at what date Hon. John L. Marling, deceased, late O'. S. minister to Guatemala, ceased to perfom the official duties of minister at Ms post of duty, and who thereupon succeeded Mr. Marling in charge of the legation; also what person or persons were recognized by the Department of State as performing diplomatic functions on behalf of the United States (and in what capacity) to Guatemala from the termination of Mr. Marling’s services as minister up to July 2, 1858, the date upon which Hon. Beverly L. Clarke entered upon his official duties at his post as United States minister to Guatemala.
    “An early reply is respectfully requested!
    “ I am, very respectfully,
    “JR. W. Tayler,
    “Comptroller.”
    
      Reporters’ statement of tac case.
    “ Department oe State,
    “ Washington, August 6,1868.
    
      “ B. W. Taylor, Esquire,
    “ Comptroller of the Treasury:
    
    “ Sir : Your letter of the 4th instant has been received.
    “ In reply, I have to inform you that John L. Marling, deceased, late minister resident of the United States to Guatemala, reported that he ‘left the city of Guatemala on the 8th of May, 1856, but did not finally leave the state until the 23rd of the same month,’ under a leave of absence granted him for the purpose of visiting his family in the United States; arrived at home on the 5th July, and on the 2nd of October of the same year tendered his. resignation of said office, to take effect on the same day, without having returned to his post of duty. On the 14th of March, 1857, William-E. Yenable, esquire, was appointed to the same position; arrived at the city of Guatemala on the 31st of July, and died on the 22nd of August of that year. The gentlemen aforementioned were the only persons recognized by this Department as having authority to perform diplomatic functions at that place from the time of Mr. Marling’s departure from his post of duty until the date upon which Mr. Beverly L. Clarke entered upon his official duties.
    “ I am, sir, your obedient servant,
    “W. Hunter,
    
      “Acting Secretary.”
    “Hon. Hugh McCulloch,
    
      “Secretary of the Treasury:
    
    “ Sir: On the 30th of July I wrote to you in reference to a claim of Henry Savage, esq., for diplomatic services in Guatemala. In that letter I referred to an official statement of Gen. Warren, the present minister, of the terms of Mr. Savage’s services. Mr. Savage has sent me a duplicate of that statement, which I enclose.
    “ The Court of Claims has given judgment in Mr. Savage’s favor for compensation at the rate of $1,500 down to Jan., 1855. The last period of service stated in General Warren’s certificate occurred after commencement of the suit in the Court of Claims, and is still unpaid for.
    “ In my letter of the 30th I set forth more fully the facts of the claim for $3,500, and asked to be informed whether it would be paid by you on presentation of proof satisfactory to you, or whether Mr. Savage must obtain another judgment in the Court of Claims. Not having yet heard of the reception of my letter of July 30, I take the liberty of again requesting that the information I have asked from you may be given.
    “ I am, with great respect, your obedient servant,
    “Lebiuel Shaw.”
    
      “Treasury Department,
    “ Comptroller’s Office,
    “ Washington, Sept’r 4, 1868.
    “ Sir : Your letter of the 30th July and of the 2d inst., respecting a claim of Mr. Henry Savage for $3,500, compensation for ■diplomatic services rendered the United States in Guatemala from May 7,1856, until September 14,1858, have been received and referred to this office for answer.
    “By a letter from the Department of State I am informed that Mr. Savage was not recognized as having authority to perform diplomatic functions.
    “ He has, therefore, no legal claim against the Government. I return Gen’l Warren’s cert.
    “ I am, very respectfully, your ob’t servant,
    “R. W. Tayler, •
    “ Comptroller.
    
    “Hon. Lemuel Shaw,
    
      '■'■Boston, Mass.”
    “ March 4,1870.
    “Hon. George S. Boutwell,
    “ Secretary of the Treasury:
    
    “ Sir: Mr. Henry Savage, a citizen of the United States, residing in Guatemala, although not commissioned, was employed to take charge of the legation of the United States at that Republic, and to act as chargó d’affaires in the absence of accredited ministers, for long periods of time, under circumstances which the Court of Claims have decided entitle him to compensation therefor.
    “While thus employed Mr. Savage endeavored, from time to time, to obtain payment for his services, and having presented his claim to the Court of Claims, obtained a judgment therefor at the rate of. $1,500 a year for the period of fourteen years and five months, that being the period of time for which he furnished evidence to the court.
    “I now have the honor of submitting evidence of precisely similar character to that which the court decided was competent and sufficient, namely, a certificate or statement of the Secretary of State, showing a similar employment continued after the date of the statement of Mr. Marcy, the one used in the Court of Claims, and proving a total length of employment of 18 years 4 months and 6 days, including the periods stated by Mr. Marcy; and the object of my present application is to obtain compensation for Mr. Savage for the additional and subsequent portion of said term not included in the judgment of the court, namely, 3 years 11 months and 6 days, at the rate •of $1,500 a year, which was adjudged to be the proper rate, and amounting to $5,900.
    
      “ I have previously submitted a copy of the opinion and judgment of the Court of Claims in Mr. Savage’s case, which is. reported in Yol. I of the Court of Claims Beports, and also copies of the evidence and briefs used in the case; and I herewith submit a letter of the Hon. Hamilton Fish, showing that the services of Mr. Savage were, throughout the periods in which he acted as chargé d’affaires, of the same character as those mentioned in the letter of Mr. Marcy, which was, as appears from the judgment, the basis of the award of the Court of Claims, and meriting compensation at the rate therein recommended, and also that the several periods of his service were as follows, namely:
    
      
    
    “As there can be no doubt that Mr. Savage is entitled to compensation for the remainder of the above term of service at the same rate as heretofore paid him, I respectfully request that he may be paid from the Treasury the amount due him therefor — $5,900—without his being again subjected to the expense and delay of another suit in the Court of Claims.
    “ I presume that my power of attorney, under which I was paid the amount of the judgment, will be sufficient to enable me to receive the balance now due Mr. Savage. If, however, anything more is indicated to me as required by way of evidence either of the claim or of my authority to receive it, I will, if possible, supply it;
    “ I am, sir, very respectfully, your obedient servant,
    “Lekuel Shaw.”
    
      Mr. Enoch Totten and Mr. John 8. Webb for the claimant:
    The claimant,being beyond the seas, was under disability, and therefore the statute of limitations did not begin to run against this claim until the date of his return, about November, 1870, he had then, until November, 1873, to make his claim;, and, as will be seen above, the claim was duly filed in the proper Department in 1868 and again in 1870. There is no question that Savage was entitled to all his rights under the disability clause. As be resided in Guatemala continually from 1827 to 1870, be was, so far as tbe provisions of tbe statute of limitations applies, a foreigner. Tbe leading case on tbis question is Strithorst v. Graeme (3 Wilson, 145).
    And tbis view of tbe law was sustained by Justice Story in The Society, etc., v. The Town of Paiolet (4 Peters, 506), and again in Ghomqua v. Mason (i Gallison, C. 0., 342).
    Cbief-Justice Kent held tbe same doctrine in Btiggles v. Keeler (3 Johnson, 363).
    “ Whether the defendant be a resident of this State and only absent for a time, or whether be resides altogether out of tbis State and only absent for a time, or whether be resides altogether out of tbe State, is immaterial. (Hall v. Little, 14 Mass., 203 ; Paine v. Drew, 44 N. H., 306.)
    Tbe decisions of tbis court on tbis question of limitation and tbe bar of tbe statute do not operate against tbe claim of the plaintiff.
    Tbis is a case referred to tbis court by the head of one of tbe Executive Departments, if it bad come here on tbe voluntary petition of the claimant and been governed by tbe decision in Ihrie’s Vase (21 O. Gis. R., 217),-bis claim for disabilities might have been disallowed, but coming from the Secretary of State, tbe case must be beard on its merits. Win-nissimmet Go. v. United States (12 O. 01s. R., p. 327.)
    There can be no question in this case but that tbe Secretary bad power, either to grant this claim or reject it, and since-all tbe papers in tbe case were at bis command, be had full knowledge of all tbe circumstances. If, then, be deliberately sends it to tbis court for adjudication, tbe doctrine of tbe “ Winnissimmet case’’must govern, and tbe motion to dismiss be denied.
    Moveover tbe case, begun in time, granting Savage’s disabilities as proven, was never allowed to die out, since tbe demand was made again upon tbe Secretary of tbe Treasury March 4, 1870.
    Beside, granting Savage’s disability, the case comes here unhampered by tbe bar of tbe statute, since the proceedings here are but a continuation of tbe proceedings in tbe Department, and if begun there in time, it can be beard here now. {Greeks Case, 18 O. Ols. R., p. 107.)
    
      ■The decision by the-Supreme Court of the United States in Lippitt’s Case (100 U. S., 603), does not operate to bar this claimant, since that decision, interpreted by this court in McClure’s Case (19 C. Cls. R., p. 25) holds :
    “ That a claim ‘ forever barréd ’ by section 1069 of the Revised Statutes is only barred from becoming the foundation of a judgment against the United States in this court on the voluntary petition of the claimant.”
    And the cases where the statute applies are very carefully set out in the opinion of the learned chief-justice, and the case here presented is not in any of the classes there mentioned. (Finn v. United States, 123 U. S. B,, 227.)
    
      Mr. Héber J. May (with whom ■ was Mr. Assistant Attorney-General Hóioard), for the defendant.
    The claim is founded upon an implied contract, and is one of which this court had jurisdiction under the voluntary petition of the claimant under section 1059, Revised Statutes. Such being the case it was incumbent upon the claimant to present his claim to the State Department and demand payment thereof within six years after it first accrued, in order to save jurisdiction of the same in this court.
    This case having been referred under section 1063, must be controlled by the provisions of such section, and the decisions of the court made thereunder.
   Richardson, Ch. J.,

delivered the opinion of the court:

The claim in this case accrued nearly thirty years ago, September 14,1858, when the claimant’s testator ceased performance of the services for which compensation is demanded. The action was not commenced by voluntary petition, but by transmission from the Secretary of State under the provisions of section 1066 of the Revised Statutes,

The defendants contend among other defenses that the court is without jurisdiction by reason of the statute of limitations (Rev. Stat., 1069), and have filed a motion to dismiss on that account.

In Lippitt’s Case (100 U. S. R., 663), the Supreme Court say that by the act of 1868 (now Rev. Stab., § 1063)—

“Authority was given to the head of any executive department, whenever any claim was made upon that department, # * * to cause such claim, with the documents pertaining thereto, to be transmitted to the Court of Claims, to be proceeded in as if originally commenced by the voluntary action of the claimant. * * * Where the claim is of such a character that it maybe allowed and settled by an executive department, or may in the discretion of the head of súch department, be referred to the Court of Claims for final determination, the filing of the petition should relate back to the date when it was first presented to the department for allowance and settlement. * * # ¶>1}6 cases thus transmitted for judicial determination are, in the sense of the act, commenced against the Government when the claim is originally presented at the department for examination and settlement.”

In Finn’s Case (123 U. S. It., 227), the Supreme Court held that unless the claim were presented to the proper department within six years after it accrues such department could not give this court jurisdiction of it by transmission under that act.

The claimant, in avoidance of this bar, relies upon the fact that his testator, from the year 1827 until his death in 1881, was domiciled in Guatemala, “beyond the seas,” and so was exempted from the limitation of section 1069 by the proviso» thereof. But it appears by Finding I that the testator came to this country in November, 1870, and remained here some four months.

It is stated in Angelí on Limitations, section 196, and is well-settled and familiar law, that the invariable construction which has been given to such a proviso in statutes of limitation is—

“That where it is incumbent on the .plaintiff to prove that he labored under any disability, he must show that it was a continuing disability from the first, and that when the statute has once begun to run no subsequent disability will impede it.”

Upon the return of the claimant’s testator to this country in 1870 the six years’ limitation of the statute immediately began to run, and it had run out several years before the making of this claim upon the State Department in 1885.

The court is therefore without jurisdiction of the case unless other,proceedings, set out in the findings, constitute such a making of claim against the proper department within six years after the testator’s return as take it out of the operation of the statutes.

The “proper department” referred to in the statute is undoubtedly that one in which the claim originated and to whose appropriation, in case of payment, it is to be charged (Rev. Stat., § 3675), and it is the head of “such department” who may transmit the same to this court when made against it.

That question was considered in one of the first cases referred to this court under the act of 1868, the Delaware Steamboat Company's Case (5 C. Cls. R., 55). The claim had been presented to the War Department, through which it was properly payable according to the provisions of the statute, now Revised Statutes, section 3673, which applies only to the War and Navy Departments. It was there disallowed. The claimant presented the same demand at the Treasury Department, where an account was stated by the accounting officers and a balance found due to the company, and the same was forwarded to the War, Department for a requisition under said provision. The claimant also demanded of the War Department that a requisition should issue and payment be made. The Secretary of War refused to comply with the requests, and thereupon he-transmitted the case to this court.

Bur there are many claims and demands, like the one now in suit, which are not required to be made upon any other department before presentation to the Treasury Department. The Revised Statutes, in section 236, provides that—

“All claims and demands whatever by the United States or against them, and alL accounts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the Department of the Treasury.”

Parties may go directly to the Treasury Department if they choose independently of any previous action on their part in the department where their claims originate.

The claimant elected the latter course and pursued his remedy in the latter forum instead of. making a claim against the Department of State until 1885.

, On the 30th of July, 1868, the attorney for the deceased presented his claim to Mr. McCulloch, Secretary of the Treasury, and on the 2d day of September following he renewed his demand by a letter to the same Secretary.

On the 4th of September, 1868, the First Comptroller, who had jurisdiction of the matter, notified the attorney that the claimant bad “no legal claim against the Government.” This was a rejection of the claim and the end of the case in that Department.

The attorney, on the 4th of March, 1870, renewed the demand by letter addressed to the Secretary, then Mr. Boutwell, who had succeeded Mr. McCulloch, but it does not appear that the case was re-opened, nor that any reply was made to this communication, apparently because, according to Department law and practice, a case disposed of under one Secretary can not be re-opened by his successor, except on account of newly-discovered evidence or some error apparent in the record. (Jackson’s Case, 19 C. Cls. R., 508; Rollins & Presbrey's Case, 23 C. Cls. R., 106.)

While pending in the Treasury Department the claim might have been settled and paid, if there was an appropriation applicable to it, or it might have been transmitted to this court by the Secretary of the Treasury, on the certificate of the Auditor or Comptroller if not upon his own motion, under the statutes, independently of the State Department. As it was not referred to the Secretary of State, as the claim of the Delaware Steam-boat Company was sent to the Secretary of War for requisition and payment, but was rejected, it can not be held to have been made upon the State Department by the proceedings in the Treasury.

It was not until fifteen years after the case had been disposed of in the Treasury Department that the executor of the original claimant, who had died in the mean time, made formal claim against the Department of State by a letter addressed to the Secretary March 2,1885. That letter was sent to this court by the head of the Department, transmitting the claim, and was the foundation of his action in that regard. In our opinion the presentation of it to the Department of State was the filing of the petition in the case now before us within the meaning of the statue of limitation as interpreted by the Supreme Court in the Lippiit Case.

The only previous connection the State Department had with the matter was that Acting Secretary Hunter answered certain inquiries made by the First Comptroller in 1868, which had reference to the claimant’s demand on the Treasury, and in which the claimant’s claim was not mentioned, and that in 1870 Secretary of State Fish, furnished to the claimant’s counsel information asked for by him for use before the Comptroller, as stated in his letter of inquiry.

It is evident from the findings that it was never understood by the parties' — the claimant and those representing him on the one side, and the officers of the State Department on the other — that the claim was ever presented to that Department for settlement and payment until demand was made by the claimant’s attorney March 2,1885. It is not to be presumed that the State Department would have held such a claim under advisement for fifteen years, nor that the claimant would have let it so remain without at least an inquiry for so long a period.

The petition must be dismissed.  