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The case was brought to a hearing on its merits on the 7th day of February, 1889. The claimant in his petition alleges

That he is a citizen of the United States, residing in Jefferson County, State of Tennessee, where he resided during the late war of the rebellion; that during said period, on November 15, 1863, the United States forces under command of Colonel Palmer, Sixteenth Pennsylvania Regiment, took from your petitioner one horse, valued at $150, and appropriated the same to the use of the United States Army.

FINDINGS OF FACT.

The court upon the evidence, and after considering the briefs and arguments of counsel on both sides, finds that the allegations of the petition are not proved.

Filed February 11, 1889.

A true copy.

Test, this 13th day of December, A. D. 1890. [SEAL.]

BY THE COURT.

JOHN RANDOLPH,

Assistant Clerk Court of Claims.

DISMISSED CASE OF MARY J. FOWLER vs. THE UNITED STATES.

Letter from the assistant clerk of the Court of Claims, transmitting a copy of the opinion of the court dismissing for want of jurisdiction the case of Mary J. Fowler against the United States.

DECEMBER 16, 1890.-Referred to the Committee on War Claims.

COURT OF CLAIMS, CLERK'S OFFICE,

Washington, December 15, 1890.

SIR: Pursuant to the order of the court, I transmit herewith a certified copy of the opinion dismissing case for want of jurisdiction in the aforesaid cause, which case was referred to this court by the Committee on War Claims, House of Representatives, July 10, 1888, under the act of March 3, 1883.

I am, very respectfully, yours, etc.,

Hon. THOMAS B. REED,

JOHN RANDOLPH, Assistant Clerk Court of Claims.

Speaker of the House of Representatives.

[In the Court of Claims. Petition. Presented by T. W. Tallmadge, attorney. Filed. Mary J. Fowler vs. The United States. No. 5327, Congressional.]

To the honorable Court of Claims of the United States:

Your petitioner, Mary J. Fowler, respectfully represents:

That she is a citizen of the United States, residing in the county of Monroe, State of 'lennessee, where she resided during the late war of the rebellion; that at different times during that period the United States forces, by proper authority, took from your petitioner quartermaster stores and commissary supplies of the value of $3,200, and appropriated the same to the use of the United States Army. That the said stores and supplies were the property of your petitioner, and consisted of the following articles and values:

1,300 bushels corn, at $1 per bushel...

One iron-gray horse, about 8 years old, 15 hands high.

One horse mule, brown, 6 years old, 16 hands high

One mouse-colored mule, 5 years old, 15 hands high.
One bay mule, 5 years old, 144 hands high

20 tons hay, at $20 per ton..

200 bushels wheat, at $1.50 per bushel.

600 dozen sheaf oats, at 25 cents per dozen bundles.. 1,500 panels fence, ten rails to panel, at $3 per cord

Total.......

$1,300.00

150.00

150.00

150.00

150.00

400,00

300.00

150.00

450.00

3,200.00

Your petitioner further states that being improperly advised by his attorney in the premises, her husband, W. J. Fowler, presented to the Quartermaster-General United States Army, under the act of Congress approved July 4, 1864, a claim No. 1 for compensation for said stores and supplies, which was by the Quartermaster-General disallowed about August 4, 1882, on the ground that he was not convinced of the loyalty of the claimant.

H. Mis. 1-61

day of

Your petitioner further states that at the time said claim was preferred as aforesaid she was not familiar with such business, and supposing that her husband's local attorney, Mr. R. K. Robinson, was fully competent to advise regarding the proper mode of procedure she permitted the course as indicated to be taken, but having been subsequently advised that the manner of the presentation of said claim was erroneous, and that she, as the real owner of the property charged for therein, should have preferred said claim, she petitioned to Congress of the United States for relief, and on or about the 1888, her said petition was by the Committee on War Claims of the House of Representatives referred to the honorable Court of Claims under section 1 of an act of Congress approved March 3, 1883, entitled "An act to afford assistance and relief to Congress and the Executive Departments in the investigation of claims and demands against the Government." That in said petition your petitioner alleges the fact of ownership of the property taken and charged for, and the manner in which her title thereto accrued, and for supporting evidence of her allegations upon that point she respectfully refers the honorable court to the testimony on with her husband's said claim, and the report of the agent of the Quartermaster's Department who investigated and reported on the same about October, 1880.

Furthermore, your petitioner states that the report of said quartermaster's agent does great injustice to her testimony as given or intended to have been given by or before him, touching her tenure to certain items of property charged for, and she also submits that the said report is very unfair and sinister in other respects, particularly as regards the value of the lands from which the stores and supplies were taken, as also the false inferences or suggestions as to the probability of certain items as charged being taken from the lands of others; all of which your petitioner desires an opportunity to correct and make satisfactory to the honorable court by testimony to be hereafter submitted.

That no remuneration has been made for this your petitioner's claim, either to herself or to her said husband, nor has said claim been assigned or transferred; that the same is correct and just; that your petitioner did not give any aid or comfort to the late rebellion, but was throughout that war loyal to the Government of the United States.

Wherefore your petitioner claims the sum of $3,200 and prays for a finding of the facts before set forth and such facts as may be shown by the evidence, and the report thereof to the committee by which the cases was transmitted, as provided in said act of March 3, 1883.

MARY J. FOWLER.

Subscribed and sworn to before me this 2d day of August, 1888.

STATE OF TENNESSEE, County of Monroe:

W. H. DAVIS, J. P.

I, W. N. Mayill, clerk of the county court, do hereby certify that W. H. Davis is now and was at the time of signing the above affidavit an acting justice of the peace duly qualified and commissioned; that his official acts are entitled to full faith and credit and that his signature is genuine. That he is a justice in and for Monroe County, Tenn.

Witness my hand and seal this August 2, 1888.

W. N. MAYILL, Cs., Ct. Clk.

[Court of Claims. Congressional Case No. 5327. Mary J. Fowler v. The United States.]

MOTION TO DISMISS FOR WANT OF JURISDICTION.

Richardson, Ch. J., delivered the opinion of the court:

This case comes here by transmission under the Bowman act from the Committee on War Claims of the House of Representatives.

The claimant in her petition in this court August 15, 1888, alleges that she is a citizen of the United States, residing in Monroe County, Tenn., where she resided during the late war of the rebellion; that at different times during that period the United States forces, by proper authority, took from her quartermaster's stores and commissary supplies of the value of $3,200 and appropriated the same to the use of the Army; that said stores and supplies were the property of the petitioner and consisted of the articles specified.

It appears from the petition and documents that Mary J. Fowler never presented a claim to the Commissioners of Claims nor to the Quartermaster-General, who had concurrent jurisdiction, as to property taken in Tennessee for the use of the Army. (R. S., second edition, secs. 300 A and 300 B.; act of 1871, ch. 116.; 16 Stat. L., 524.) The act of March 3, 1873, ch. 236, sec. 2 (17 Stat. L., 577), provides:

"SEC. 2. That the Commissioners of Claims shall not receive any petition for the allowance of any claim or claims unless petition shall be presented to and filed with them on or before the third day of March, eighteen hundred and seventy-three; and all claims not so presented shall be deemed to be barred forever thereafter."

As to claims of which the Quartermaster-General and Commissary-General had jurisdiction under the act of July 4, 1864, ch. 240 (13 Stat. L., 351), and the amendments thereto (R. S., second edition, secs. 300 A and 300 B.), the act of March 3, 1879, ch. 287, sec. 3 (Supplement to R. S., p. 481) provides as follows:

"SEC. 3. That all claims not presented and filed under said act, and the acts amendatory thereof, prior to the first day of January, anno Domini eighteen hundred and eighty, shall be forever barred."

The jurisdiction of this court under the Bowman act (act of March 3, 1883, ch. 116, sec. 3; 22 Stat. L., 435), is thus restricted:

"Nor shall the said court have jurisdiction of any claim against the United States which is now barred by virtue of the provisions of any law of the United States."

The Assistant Attorney-General moves to dismiss the petition because the claim, never having been presented to the Claims Commission nor to the QuartermasterGeneral, is barred, and the court is without jurisdiction to consider it. (McLenore's Case, 21 C. Cls., 327.)

The claimant anticipated this difficulty in her case, and in her petition both to Congress and to this court she sets out the reasons why she did not present her claim under the acts.

It appears, as she alleged and from the papers returned by the quartermaster, that in 1878 the claimant's husband, Wm. J. Fowler, filed with the Quartermaster-General a claim in his own name for payment for the identical property described in the claimant's petition, then and there alleged to be his own property and taken from him. This claim was there prosecuted to a final decision. Both the present claimant and her husband were examined as witnesses in support of the claim, as were many other witnesses. The result was that in August, 1882, the claim was disallowed on the ground that the loyalty of the then claimant, Wm. J. Fowler, was not proved.

The present claimant alleges in her petition that her husband and herself were wrongly advised that the property was his own and that he was the person to make application for payment, whereas she was in fact the owner in her own right.

The statutes make no exceptions in favor of any claims not presented within the times prescribed, and admit of no excuses, but bar all alike.

If the claim here presented by Mrs. Fowler be the same as that presented to the Quartermaster-General by her husband, then this court has jurisdiction, otherwise not. We must consider whether or not the two petitions before the two tribunals present in fact the same issues. In these stores and supplies cases the claimant is required to prove before the Quartermaster-General or Claims Commission his or her ownership of the property, and the taking of the same by and for the use of the Ariny, and his or her loyalty.

In the petition to the quartermaster by Wm. J. Fowler and in the petitions of Mary J. Fowler to Congress and to this court, the property, its taking and its use are the same, but the ownership and the loyalty to be proved are different.

Before the Quartermaster-General the ownership alleged was that of the husband. The wife was a witness and made no claim thereto. That raised the issue of his loyalty. On that issue her husband, with her knowledge and consent, under advice of counsel, rightly or wrongly, staked the claim there presented. That issue was found against the then claimant and the claim was disallowed.

Now the wife comes here and presents a claim for the value of the same property as belonging to her in her own right. This raises a new issue, the loyalty of the wife, which was never presented to nor considered by the Quartermaster-General.

The question of right to amend is not involved in the case here. The present claimant with her husband might at any time have gone to the Quartermaster-General even after the claim had been disallowed and have moved to have the case reopened and to amend his petition by substituting her name in place of that of her husband as claimant. Had the Quartermaster-General allowed such an amendment and tried the issue of her loyalty, her claim would have come here as the same as that presented to him.

If it was too late for the Quartermaster-General to allow the amendment by the substitution of a new party, on account of the limitation of time for the presentation of claims before him, it is too late for this court to take jurisdiction. The motion is allowed and the case is dismissed.

Filed January 20, 1890.

A true copy. Test this 15th day of December, A. D. 1890.

BY THE COURT.

JOHN RANDOLPH,

Assistant Clerk Court of Claims.

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