the bond, bill or note falls due, which evidently refers to the lapse of time specified in the contract; but the absolute obligation to pay does not arise in the case of an indorser before notice of dishonor, which can never be given to the indorser till after the note is presented to the maker, and he has refused 591*] or neglected to fulfill his promise to pay, so that the notice in writing requiring the holder to sue the indorser with the maker, would seem to be inapplicable before the lia-sue any one of the parties to the note who is bility of the indorser is fixed by demand of payment of the maker and his refusal to comply, and notice is given to the indorser of the dishonor of the note.

convenience in mercantile transactions. Hence, mittee clerks, messengers and all other em594*] the law encourages their *use as a safe ployees of the Senate and House of Representaand convenient medium for the settlement of tives, and to the Globe and official reporters balances among mercantile men, and any of each House, and the stenographer of the course of judicial decision calculated to re- House, and to the Capitol police, and the three strain or impede their unembarrassed circula- superintendents of the public grounds and gartion would be contrary to the soundest princi- dens, their clerks and assistants, and to the ples of public policy. Librarian, assistant Librarians, messengers Mercantile law is a system of jurisprudence and other employees of the Congressional lirecognized by all commercial nations, and up-brary, an addition of twenty per cent. on their on no subject is it of more importance that present pay, to commence with the present there should be, as far as practicable, uniform- Congress; and the amount necessary to pay ity of decision throughout the world. Goodman this allowance is hereby appropriated out of v. Simonds, 20 How., 364, 15 L. ed. 940. any money in the Treasury not otherwise apApply these several suggestions to the case propriated. and it follows that the statute, when properly construed, does not include the indorser of a negotiable promissory note whose liability has become absolute by due notice of the dishonor of the note.

Submitted Dec. 14, 1874. Decided Jan. 12, 1875.

PPEAL from the Court of Claims.

The petition in this case was filed in the court below by the appellee, to recover an increase of 20 per cent, for certain years, upon his salary as superintendent of the public gardens of the Department of Agriculture, under the 18th section of the Act of July, 28, 1866. That section is as follows:

Sec. 18. And be it further enacted, that there be allowed and paid to the officers, clerks, com

NOTE. Construction of statute according to purpose for which it was passed.

Construing a statute according to 's equity, is to give effect to it according to the intention of the law makers as indicated by its terms and purposes. Blakeney v. Blakeney, 6 Port., 109, 30 Am. Dec., 574.

A case within the equity of a statute, though not within its letter, may be declared, in a court of equity, to be within the statute. Davis v. Harkness, 1 Gilm., 173, 41 Am. Dec., 184.

General words of a statute must receive generat construction, unless there is something in it to restrain them. Jones v. Jones, 18 Me., 308, 36 Am. Dec.. 723.

"For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discussed and considered: 1. What was the common law before the making of the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth. 4. The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief." Hey don's case, 3 Co., 7; 1 Bl. Com., 61, 87.

Statutes are to be construed with reference to the object to be accomplished by them. People v. Dana, 22 Cal., 11.

In construction of statutes, the general state of opinion, public, judicial and legislative, at the time of the enactment, may be considered. Delaplane

The court, upon the evidence, found the facts to be as follows:

From the 4th day of March, 1865, to the first day of July, 1870, the claimant held the position and performed the duties of Superintendent of the Public Gardens of the Department of Agriculture, at a salary of $2,000 per annum.

For the time between July 1, 1866, and June 30, 1867, he was, under the Joint Resolution of February 28, 1867, 14 Stat. at L., 569, paid, in separate monthly payments, twenty per cent. been paid anything additional upon said saladditional upon said salary; but he has not ary under the 18th section of the Act of July 28, 1866, 14 Stat. at L., 310, 323.

Upon the foregoing facts the court, pro forma, for the purpose of obtaining the decision of the Supreme Court of the United States upon the questions of law involved, holds, as a conclusion of law, that the addition of twenty per cent. on the pay of the claimant, authorized by the 18th section of the said Act of July 23, 1866, was not an addition merely for the period of time between the commencement of the Congress that passed said Act, viz.: March 4, 1865, and the date of said Act, but was a continuing addition upon said pay from said March 4, 1865, to the time said section of said Act was repealed, viz.: July 1, 1870; and that, therefore, the claimant is entitled to recover from the defendants the said v. Crenshaw, 15 Gratt., 457; Keyfort St. Co. v. Farm's Trans. Co., 3 C. E. Green, 13.

Statute may be construed with reference to the circumstances at the time and the necessity of enacting it. Thus, an Act as to service of process in civil actions was held not to require filing the complaint as a first step. because of the delay and expense of travel. Keith v. Quinney, 1 Or., 364.

Where the intent is doubtful, equity will give it such construction as is most convenient and equitable. Jersey Co. v. Davison, 5 Dutch., 415.

Ambiguous words are to be interpreted by comparing them with the context of the whole statute, and by considering its reason, spirit and cause. State v. Judge, etc.. 12 La. Ann., 777.

Statutes should not be so construed as to include cases not intended to fall within them. Estate of Ticknor, 13 Mich., 44; Workman v. Campbell, 46 Mo., 305.

"Assignee" held to include "grantee" as within the reason and object of the statute. Mattoon v. Young, 45 N. Y., 696.

The intent and meaning of the makers should be followed though it may seem contrary to the letter of the statute. These are sometimes to be collected from the cause or necessity of such statute. Canal Co. v. R. R. Co., 4 Gill & J., 152; Brown v. Somerville. 8 Md., 444: Jackson v. Collins, 3 Cow., 89; People v. Utica Ins. Co., 15 Johns., 358, 380, 381; Edwards v. Dick, 4 B. & Ald. 212.

All persons of full age and sound mind, held not to include married women, on the ground that it was not the intention of the Legislature to alter the relation hetween husband and wife. Wilbur v. Crane, 13 Pick., 284; Osgood v. Breed, 12 Mass., 530.

addition of twenty per cent. on his said salary, tional temporary increase for them, who will from March 4, 1865, to July 1, 1870, which deny its right to do so? addition for said period amounts to the sum of $2,131.11, for which judgment will be entered in his favor. Whereupon the defendant took an appeal to this court.

Messrs. Geo. H. Williams, Atty. Gen., and John Goforth, Asst. Atty. Gen., for appellant:

*Mr. Justice Bradley delivered the [*494 opinion of the court:

We are clearly of opinion that the claimant, in this case, was not within the intent and meaning of the 18th section of the Act of July 28, 1866.

No Act of Congress ever created or recog- The Court of Claims finds, it is true, that nized the office of Superintendent of Public he held the position of Superintendent of the Gardens, in any but the Botanical Garden. Public Garden of the Agricultural Department Whatever may have been Mr. Saunders' duties, during the period for which the claim is made, yet he was not known in the eye of the law on namely: from March 4, 1865, to July 1, 1870. June 28, 1866, as a superintendent of public But it is well known that the Botanical Gargardens. The same Congress afterwards, by den near the Capitol has been regarded as a Joint Resolution, approved Feb. 28, 1867, 14 public garden for many years, and long before Stat. at L. 569, made an almost identical pro- the experimental garden of the Agricultural vision for the officers, employees, etc., of the Department was established; and that it was Executive Departments, the two together in- managed by a superintendent and assistant sucluding all the officers and employees of the perintendents. It is equally well known that Government within the City of Washington. this garden has for a long period, if not alBeing in pari materia, they are to be construed ways, been under the immediate direction and as one Act. The Resolution allows twenty per control of the Joint Library Committee of Concentum additional allowance on the salaries, gress. The public statutes contain a long inter alia, of civil officers, clerks, employees, series of appropriations for both garden and etc., of the Department of Agriculture and superintendents. Thus, in the appropriation Commissioner of Public Buildings; thus provid- bill of July 2, 1864, for the year ending June ing for the public gardens, not within the pro- 30, 1865, 13 Stat. at L., 349, the following apvisions of the 18th section of the Act of 28th propriation was made: July, 1866. The Botanical Garden does not "Botanic Garden. For grading, draining, come within the resolution, and the appellee procuring manure, tools, fuel and repairs, purclaims that among the many thousands bene-chasing trees and shrubs, under the direction fited by the Act and Resolution, he and his comrades in the Garden of the Department of Agriculture, for no special reason, were selected to be the recipients of a double portion. Claimant has received twenty per centum under the Joint Resolution, placing himself, therefore, in the Executive Department. Having made his election, he is estopped from changing his base of operations and claiming as an employee in the Legislative Department. Mr. John Denver, for appellee:

The Court of Claims find that Saunders was one of the three Superintendents of Public Gardens mentioned in this Act, and that he was never paid anything under it.

of the Library Committee of Congress, $3,300.

For pay of Superintendent of Botanic Garden, and assistants in the Botanic Garden and greenhouses, to be expended under the direction of the Library Committee of Congress, $6,145.80."

A similar provision is made in the appropriation bill for the year ending June 30, 1866, adding $2,500 to be expended under direction of the Joint Committee of the Library, for erecting four greenhouses. 14 Stat. at L., 21. The like appropriation for salaries was made in the appropriation bill for the year ending June 30, 1867. 14 Stat. at L., 193. Then comes the Act in question, increasing the salaries twenty per cent., to commence with that Congress, to wit: March 4, 1865. The Act, as will be shown hereafter, increases the salaries of "the three superintendents of the public gardens." Now, in the next appropriation bill, for the year ending June 30, 1868, not only is the ordinary appropriation *made [*495 for the "botanic garden under direction of the Library Committee of Congress, $3,300;" and, "for pay of superintendent and assistants, and assistants in the botanic garden and greenhouse, under direction of the Library Committee of Congress, $6,145.80;" but a continuation of the twenty per centum is added, thus: "for twenty per centum additional on the pay of the above $1,229.16." The designation, "superintendent and assistants," implies at least three in number. No such appropriaThe Joint Resolution approved Feb. 28, 1867, tion is found in reference to the experimental 14 Stat. at L., 569, gave an additional twenty garden attached to the Department of Agriper cent. to certain officers and employees culture. Whilst the Botanic Garden, under the therein mentioned, but that was limited to one direction of the Joint Library Committee of year. If Congress chose to make a permanent Congress, with its superintendent and his asincrease of compensation to government offi-sistants, eo nomine, have thus been the subject cers and employees, and then to make an addi- of appropriations for a long period, the exper

The question submitted to this court for decision is, whether this Act, which was made to take effect Mar. 4, 1865, extended beyond the date of its approval, July 28, 1866. Of this there would seem to be scarcely a reasonable doubt. It is a general Act, and the only period of time referred to is that when it should take effect. The payment of the twenty per cent. additional to their present pay was "to commence with the present Congress," and that Congress commenced Mar. 4, 1865. There was no limitation as to the duration of the Act, and it is a well known fact that other officers and employees embraced under its provisions continued to be paid the twenty per cent. additional until it was finally repealed by the 4th section of the Act approved July 12, 1870, 16 Stat. at L., 250.

imental garden, established by the Department of Agriculture, was comparatively recent, and regarded as an appendage of that department, and the appropriations therefor had been made under the general head of appropriations for the said department, and no appropriation for any superintendent thereof, eo nomine, had ever been made up to the time of the passage of the Act of July 28, 1866. The appropriation had been for the "experimental garden," and for the salary of the foreman and laborers. See, Acts, 13 Stat. at L., 155; 14 Stat. at L., 203.

From this legislative history it is apparent that the Botanic Garden near the Capitol was regarded as a public garden; that it had a superintendent and assistant superintendents; that appropriations had for years been made for their salaries as superintendent and assistants by name; and that they were employed, and the garden was managed, under the immediate direction of the Joint Library Committee of the two Houses of Congress. They were, in fact, employees of this committee.

Now, it seems to us that the 18th section

of the Act of July 28, 1866, which provides for

WILLIAM A. HAYCRAFT, Appt.,

v.

UNITED STATES.

(See S. C., 22 Wall., 81-98.) Captured and Abandoned Property Act-who may sue-disloyal owner.

1. One who gave aid and comfort to the late rebelllon cannot, after the expiration of two years from its suppression, maintain an action in the Court of Claims for the recovery of money in the Treasury arising for the sale of his cotton, seized by the United States and sold under the provisions of the Captured and Abandoned Property Act of Mar., 12, 1863.

2. Nor can he recover on an implied promise by the United States to pay to every owner of captured and abandoned property, whether loyal or disloyal, the proceeds of his property taken and sold. disloyal owner by the operation of the President's Proclamation of December 25, 1868, granting unconditional pardon to all who participated in the rebellion.

3. The right of action was not restored to the

4. Where both the right and the remedy are cre-
ated by the same statute, and the remedy provided
is exclusive of all others.
[No. 175.]

Argued Dec. 9, 10, 1874. Decided Jan. 18, 1875.
PPEAL from the Court of Claims.

A

The petition of the claimant, Haycraft,

1. That, in the month of April, 1863, he owned and had in his possession one hundred bales of cotton, of the weight of about four hundred fifty pounds to the bale, which cotton was raised on the plantation of one Nanette Switzer, in said County of Washington, from whom petitioner had purchased the same, and after the purchase, petitioner had taken the precaution of storing said cotton under sheds on the plantation of one George P. Powell, about three miles back of "Eggs Point," in said county.

the addition of the twenty per centum now claimed by the appellee, had reference only to in the court below was as follows: To the honorable, the Court of Claims: persons employed under the direction of the The petition of William A. Haycraft, a citi496*] two Houses *of Congress, or their committees, and not to those of any of the Execu- zen of the United States, residing at Greentive Departments. The section itself is its ownville, State of Mississippi, showeth : best interpreter. It is as follows: "Sec. 18. And be it further enacted, That there be allowed and paid to the officers, clerks, committee clerks, messengers and all other employees of the Senate and House of Representatives, and to the Globe and official reporters of each House, and the stenographer of the House, and to the Capitol police, and the three superintendents of the public gardens, their clerks and assistants, and to the Librarian, assistant Librarians, messengers and other employees of the Congressional library, an addition of 2. That afterwards, some time in said month twenty per cent. on their present pay, to commence with the present Congress, and the of April the cotton was seized, as claimant is amount necessary to pay this allowance is informed and believes, by one Col. E. D. Oshereby appropriated out of any money in the band, of the United States Army, by whose di14 rection the same was transported and shipped Treasury not otherwise appropriated." Stat. at L., 323. In view of the long super- to Memphis, Tennessee, where the same vision over the Botanic Garden by the Library delivered to officers or agents of the United Committee, and of the previous legislation re- States, and by them sold, and the proceeds paid into the Treasury of the United States, ferred to, language could hardly be plainer. according to claimant's information and belief.

But there is additional evidence that this increase of salary was intended to be confined to persons employed under the immediate direction of the two Houses of Congress and their committees, in the fact that by a Joint Resolution of February 28, 1867, 14 Stat. at L., 569, twenty per cent. was added to the salaries of all employees of the several Executive Departments, including the Department of Agriculture, for one year from and after the 30th of June, 1866; and the claimant actually received such addition accordingly. It is not reasonable to suppose that Congress intended to single out this particular employee from all the government employees as alone entitled to a double addition of twenty per cent. to his compensation, which he certainly would receive for the year named, if his construction of the Act of July 28, 1866, is the correct one.

The judgment must be reversed.

was

3. Petitioner avers that he is unable to state the precise amount for which said cotton was sold, or the expenses attending the seizure, transportation, shipment and sale thereof, but he states, on information and belief, that the said cotton netted $27,000, and perhaps more; and that at least that amount, as the net proceeds of the sale of said cotton, was paid into the Treasury of the United States, and is now held by the United States in trust, and for the use and benefit of your petitioner, as the owner of said cotton.

4. Petitioner also states that at the time said cotton was so seized and taken as aforesaid, the said place from which it was taken, and the country around and adjacent thereto, including said county, were under the control and within the lines of the Army of the Unit ed States, and that there was no lawful and valid capture in war of said cotton. 89 U. S

5. And petitioner avers that he never aban- of the court, of suits against the Government doned or forfeited his right to said cotton; on contracts, express or implied. The Court that no confiscation or forfeiture of the same of Claims overruled the demurrer, and dishas ever been adjudged, and that no proceed- missed the petition for want of jurisdiction in ings for that purpose are now pending or have this court to entertain it.

ever been instituted.

The case, number 176, Lane v. U. S., post, 743, raised the same questions and the two cases were argued together.

Messrs. Joseph Casey, S. E. Jenner and T. W. Bartley, for appellant in No. 175, Messrs. Bartley and Jenner, in No. 176.

6. That, during the late rebellion against the United States, the voluntary residence of your petitioner was in said County of Washington, and State of Mississippi, where, for some time during said residence, the rebel force or organization held sway; and although 1. Was the right of suit for these proceeds he was not in arms against the United States, exclusively under the Act of Mar. 12, 1863? he did not at all times strictly adhere to the The Act provides that where a loyal man's United States, but did at times, to some ex-property has been taken and sold by the Unittent, give aid and comfort to persons engaged ed States, he may, within two years after the in said rebellion and was, therefore, precluded war, bring suit to recover the proceeds; that from redress by suit in the Federal Courts, is, the United States has taken his property, and especially from the remedy afforded to claimants under the provisions of the Act of Congress approved Mar. 12, 1863, entitled "An Act to Provide for the Collection of Abandoned Property, and for the Prevention of Frauds in the Insurrectionary Districts in the United States."

But petitioner further avers that he is entitled to and has received the benefit of the full pardon and amnesty, duly granted by 'the authority of the United States, Dec. 25, 1868, whereby his civil disabilities were removed, and his right of redress by suit in the United States courts was restored, together "With restoration of all his rights, privileges and immunities under the Constitution and laws of the United States."

7. Your petitioner further states that his property aforesaid, having been taken possession of by the United States Government and appropriated by it, and the money arising from the sale of said property being taken posses sion of by the Government, an implied contract has arisen on its behalf to make petitioner just compensation therefor, according to what it was fairly and reasonably worth at the time and place at which it was so taken from him as aforesaid, and accordingly to pay over to him the net proceeds of the sale of said cot

ton.

And petitioner avers that the said cotton, at the time and place of its seizure aforesaid, was well and reasonably worth the amount of $27,000, being the amount of the net proceeds of the sale thereof, which amount, under the implied contract aforesaid, claimant is entitled to receive from the United States. Wherefore petitioner prays judgment for the said amount of $27,000.

To the claimant's petition the defendants pleaded that this court had no jurisdiction of the action, because the claimant could only have and maintain an action under the Act of Mar. 12, 1863; because an action could only be instituted within two years after the suppression of the rebellion; and because this action was not instituted within that time, but long after, to wit: July 30, 1872.

which it had no right to take at all, and has converted it into money, and hold it as а trustee for him, as the Supreme Court has declared in Padelford, Klein and other cases. Then he brings an action for money had and received to his use, on the implied promise; and that is the whole of this action. It is, in fact and in substance, that and nothing else. Governments are not liable in torts. They do not commit legal and technical wrongs. What would be such in an individual, is an implied promise to indemnify, in the State.

Of all such actions, the Court of Claims has had jurisdiction ever since the Act of Feb. 24, 1855. 10 Stat. at L., 612.

"The said court shall have 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." This same jurisdiction is re-conferred in the Act of Mar. 3, 1863, re-organizing the Court of Claims, 12 Stat. at L., 765.

The Captured and Abandoned Property Act remitted claimants to that court under the general powers and faculties of the court; as theretofore conferred and defined by law.

U. S. v. Anderson, 9 Wall., 56; 19 L. ed., 615; U. 8. v. Padelford, 9 Wall., 531, 19 L. ed., 788; Ex parte Zellner, 9 Wall., 244, 19 L. ed., 665, where the Court of Claims had decided, that the Act of Mar. 12, 1863, did not give the right of appeal. And Congress, recognizing the same view, passed the Act of June 25, 1868, 15 Stat. at L., 75, to confer that right on the United States. But Your Honors held that the claimant could appeal under the general provisions contained in the Act of Mar. 3, 1863, § 5, 12 Stat. at L., 765.

As

Knowing that mistakes as to the true status of persons had been and would be made, Congress provided for loyal men in this Act. to the proceeds of the disloyal person's property, it remained in the Treasury, subject to the policy which the Government should adopt.

This subject was amply provided for in the first eight sections of the Act of July 17, 1862, 12 Stat. at L., 589-591.

Opinion of Chief Justice Chase in U. 8. v. Klein, 13 Wall., 139, 20 L. ed. 523.

To this plea the claimant files a general demurrer, in support of which he takes the position that he is not restricted to the Act of "The Act of March 12, 1863, provided for March 12, 1863, for a remedy, but that the the sale of enemies' property collected under Government is bound by an implied contract the Act and payment of the procee 3 into the to pay him the value of his cotton, and that Treasury, and left them there subject to such a suit on that implied contract may be main action as the President might take under the tained here, under the general jurisdiction | Confiscation Act of the 17th July, 1862."