775. Claims pending in other courts (Judicial Code, sec. 154). : NOTES OF DECISIONS

an agent of the Government, in which the judgment would not be res adjudicata in the suit pending in the Court of Claims. Matson Nav. Co. v. U. S. (1932), 284 U. S. 352.

In general. The declared purpose of this section was only to require an election between a suit in the Court of Claims and one brought in another court against 776. Time limit for filing claims (Judicial Code, sec. 156).

NOTES OF DECISIONS

In general. The prosecution and pendency of and proceedings in a claim in a department of the Government do not extend the six-year limitation within which suit may be instituted in the court. Cohen, Goldman & Co. v. U. S. (1933), 77 Ct. Cls 713.

A claim founded upon a contract with the Government and which accrued more than six years before it was transmitted to the court by Congressional reference is barred by this section. Union Iron Works v. U. S. (1933), 77 Ct. Cls. 467.

Claim first accrues against United States within statute of limitations when suit may first be brought upon it (Jud. Code, sec. 156 (U. S. C. A. 28: 262)). Corporation of the Royal Exchange Assurance v. United States (D. C. 1934), 6 F. Supp. 689.

|

from his pay was made. Donald R. Tallman v. U. S. (1933), 77 Ct. Cls. 303.

Suits for rental and subsistence allowances.--The act of May 31, 1924, reenacted and amended sections 4, 5, and 6 of the act of June 10, 1922, which provided for rental and subsistence allowances to military offcers with dependents, and created no new right. Running of the statute of limitations as to right of action for recovery of same was not postponed by the later act. Caudle v. U. S. (1931), 72 Ct. Cls. 331.

An officer's right to rental and subsistence allowances does not accrue until the end of a given month, and the statute of limitations does not, as to the allowances for that month, begin to run until then. Page v. U. S. (1932), 73 Ct. Cls. 626.

Suits for royalties.-Where the time for payment of royalties for the manufacture or use of patented devices is dependent upon the performance of an act or acts subsequent to such manufacture or use, a cause of action for such royalties does not accrue, and the statute of limitations does not begin to run, until such act or acts have been performed. Manufacturers Aircraft Assn. v. U. S. (1933), 77 Ct. Cls. 481.

Suits for recovery of refunds required to be made to the Government.-Where suit is brought for recovery of refunds which the plaintiff was compelled to make to the Government, the statute of limitations, sec. 156, Judicial Code, does not begin to run before he is compelled to make the refunds. Tricou v. U. S. (1930), 71 Ct. Cls. 356; Holmes v. U. S. (1932), 73 Ct. Cls. 693. Where rental and subsistence allowances allowed and paid an officer where thereafter the limitation fixed by this section for erroneously disallowed and the amount thereof deducted from his pay; the statute runs, not from the time the allowances became due, but from the time the deduction 777. Petitions and verifications (Judicial Code, sec. 159). NOTES OF DECISIONS

Pleadings and procedure in general.-Pe tition must plainly set forth case, and proof must so far correspond with allegations as not to introduce demands which defendant

Laches. A claim brought one day within

wrongful dismissal from the Marine Corps may nevertheless be barred by laches. Chamberlain v. U. S. (1928), 66 Ct. Cls. 317, certiorari denied (1929), 279 U. S. 845.

had no notice to meet. Chicago, M. & St. P. Ry. Co. v. U. S. (1927), 63 Ct. Cls. 485, certiorari denied (1928), 276 U. S. 622.

785. No interest allowed before judgment (Judicial Code, sec. 177).

NOTES OF DECISIONS

In general. In a suit under the Tucker | full equivalent of that value paid contempoAct to recover just compensation for prop- raneously with the taking. Jacobs et al. v. erty taken by the Government there may be U. S. (1933), 290 U. S. 13, reversing (C. C. A. claimed and allowed, in the form of interest, 1933) 63 F. (2d) 326. such addition to the value of the property at the time of the taking as will produce the

This is not a claim for interest within the meaning of Jud. Code 177. Id.

790. Appearance of Attorney General for defense (Judicial Code, sec. 185). See note to 723, ante.

791. Evidence furnished by departments.

NOTES OF DECISIONS

Where the Government has been requested | obtain or furnish it to the plaintiff, then to furnish certain information for use as evidence in the prosecution of a suit against it in the Court of Claims and the attorneys conducting the defense of the suit have ob jected to the reception in evidence of such information, or have themselves declined to

such information can only be obtained by plaintiff after a motion duly brought before the Court and an order of the Court allowing or directing the giving of such information. (1921) 33 Op. Atty. Gen. 63.

CHAPTER 15

CRIMINAL CODE

Enlistment in foreign armies, 791a (Crimi- | Member of Congress interested in contract, nal Code, sec. 10). 843 (Criminal Code, sec. 114).

Forging or altering public records, 799 Making official contract with Member of (Criminal Code, sec. 28). Congress, 844 (Criminal Code, sec. 115). False claims against the United States, 806 Accepting a bribe, 846 (Criminal Code, sec. (Criminal Code, sec. 35).

117).

Robbery, larceny, etc., of public property, Political contributions; solicitation or re817 (Criminal Code, sec. 46). ceipt of, in Government service, 847 Receiving stolen public property, 819 (Criminal Code, sec. 118). (Criminal Code, sec. 48). Destruction of public records by the custodian, 853 (Criminal Code, sec. 129). Jurisdiction of Federal courts over crimes, 855 (Criminal Code, sec. 272). Laws of States adopted for punishing criminal acts, 857 (Criminal Code, sec. 289).

Prosecution of claims against the United States, 840 (Criminal Code, sec. 109). Members of Congress not to be compensated for any service in relation to a contract, etc., 842 (Criminal Code, sec. 113). 791a. Enlistment in foreign armies (Criminal Code, sec. 10).—Whoever, within the territory or jurisdiction of the United States, enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, State, colony, district, or people as a soldier or as a marine or seaman on board of any vessel of war, letter of marque, or privateer, shall be fined not more than $1,000 and imprisoned not more than three years: Provided, That this section shall not apply to citizens or subjects of any country engaged in war with a country with which the United States is at war, unless such citizen or subject of such foreign country shall hire or solicit a citizen of the United States to enlist or go beyond the jurisdiction of the United States with intent to enlist or enter the service of a foreign country. Enlistments under this proviso shall be under regulations prescribed by the Secretary of War. Sec. 10, act of Mar. 4, 1909 (35 Stat. 1089), as amended by act of May 7, 1917 (40 Stat. 39); U. S. C. 18: 22.

This provision was omitted from the original text of the Military Laws, 1929.

NOTES OF DECISIONS

Cas. No. 15,508.

In general. It is not essential to a viola- | of the United States with intent to be ention of this section that war should exist listed. U. S. v. Kazinski (D. C. 1855), Fed. anywhere at the time of such violation, although in times of war might well be regarded by the Government with greater gravity, as rendering more difficult its position as a neutral power. U. S. v. BlairMurdock Co. (D. C. 1915) 228 Fed. 77, reversed on another ground. Blair v. U. S. (C. C. A. 1917), 241 Fed. 217, certiorari denied (1917), 244 U. S. 655.

This section creates three distinct offenses.

The second and third, which are coupled together, consist in hiring or retaining another person to enlist in the United States or to go within the limit

The word "soldier", as used in the statute, must be taken in its ordinary sense, as one enlisted to serve on land in a land army, and is not limited to soldiers serving on board of a vessel of war or privateer. Id.

To constitute the offense of enlisting in the United States, the consent of the party enlisting is necessary. Also the hiring or retaining of a person to go aboard with intent to be enlisted requires the assent and intent on the part of the persons so hired or retained. Id.

The offense of enlisting under this statute is necessarily several, and can under no circumstances be joint. Id.

Statute as matter of domestic or municipal right. The act of Congress prohibiting foreign enlistments is a matter of domestic or municipal right, as to which foreign governments have no right to inquire, the international offense being independent of the existence of a prohibitory act of Congress. (1855) 7 Op. Atty. Gen. 367.

Raising troops in the United States.-It is a settled principle of the law of nations that no belligerent can rightfully make use of the territory of a neutral state for belligerent purposes without the consent of the neutral government. Hence the undertaking of a belligerent to enlist troops of land or sea in a neutral state, without the previous consent of the latter, is a hostile attack on its national sovereignty (1855), 7 Op. Atty. Gen. 367.

A neutral state may, if it please, permit or grant to belligerents the liberty to raise troops of land or sea within its territory; but for the neutral state to allow or concede this liberty to one belligerent and not to all would be an act of manifest belligerent partiality and a palpable breach of neutrality. Id.

And it being lawful for individuals to go abroad to enlist, they may go in any number and in any way they see fit, by regular lines of steamers, by chartering a vessel, or in any other manner, either separately or associated; provided, always, that they do not go as a military expedition, or set on foot or begin within our jurisdiction a military expedition or enterprise, to be carried on from this country or provide or prepare the means therefor. U. S. v. O'Brien (C. C. 1896), 75 Fed. 900; U. S. v. Nunez (C. C. 1896), 82 Fed. 599.

Engaging or hiring persons to enlist.— This section uses "retain" as an alternative to "hire", and as meaning something different from the usual employment with payment in money; and one may be retained, in the sense of engaged, to render a service by a verbal promise, and by a prospect for advancement or payment in the future. Gayon v. McCarthy (1920), 252 U. S. 171; U. S. v. Hertz (C. C. 1855), Fed. Cas. No. 15357.

It is not essential to a hiring that the consideration be pecuniary, or that it be paid at once. U. S. v. Blair-Murdock Co. (D. C. 1915), 228 Fed. 77, reversed on other grounds, Blair v. U. S. (C. C. A. 1917), 241 Fed. 217, certiorari denied (1917), 244 U. S. 655.

Great Britain, in attempting, by the agency of her military and civil authorities If there is an engagement on the one in the British North American provinces, side to go beyond the limits of the United and her diplomatic and consular function- States with the intention to enlist, and on aries in the United States, to raise troops the other side an engagement that when here, committed an act of usurpation against the act shall have been done a considerthe sovereign rights of the United States. Id. tion shall be paid to the party performing Right of citizen to enter service of foreign the services, the hiring and retaining are government.A citizen of one country may complete. U. S. v. Hertz (C. C. 1855), Fed. enter the military service of a foreign gov- Cas. No. 15357. ernment without compromising the neutrality of his own. Chacon v. Eighty-nine Bales of Cochineal (C. C. 1821), Fed. Cas. No. 2568, affirmed The Santissima Trinidad (1822), 20 U. S. 283; Juando v. Taylor (D. C. 1818), Fed. Cas. No. 7558.

Leaving country to enlist. It is not a crime or offense against the United States under the provisions of this statute for an individual, whether he is or is not a citizen, to leave the country with intent to enlist in foreign military service. U. S. v. Hertz (C. C. 1855), Fed. Cas. No. 15,357; U. S. v. Nunez (C. C.. 1896), 82 Fed. 599; U. S. v. O'Brien (C. C. 1896), 75 Fed. 900; U. S. v. Kazinski (D. C. 1855), Fed. Cas. No. 15508. See also Wiborg v. U. S. (1896). 163 U. S. 632, modifying U. S. v. Wiborg (D. C. 1896), 73 Fed. 159.

Nor is it an offense to transport persons out of the United States, and land them in foreign countries, when such persons intend

to enlist in foreign armies. U. S. v. Wiborg (D. C. 1896), 73 Fed. 159, modified, Wiborg v. U. S. (1896), 163 U. S. 632; U. S. v. O'Brien (C. C. 1896), 75 Fed. 900; U. S. v. Kazinski (D. C. 1855), Fed. Cas. No. 15508.

It was an offense under Act April 20, 1818 (incorporated in part on this section), to engage a person to go beyond the limits of the United States to enlist in the service of a foreign country, where there was an intention that a consideration should be paid therefor. Id.

A solemn contract of hiring in the United States is not necessary to constitute the offense. (1855), 7 Op. Atty. Gen. 367, 377.

It is not necessary that the persons be entirely enlisted in the United States, but it is sufficient if they are hired or retained to go beyond the limits or jurisdiction of the United States with intent to be enlisted or enter into the service of a foreign state. Id.

"The word 'retain' follows the word 'hire.' We should not expect to find it used in a meaning opposite to that of 'hire' and opposite to its own usual signification. Suppose it to be used in the sense of retain, and apply it to the enlisting of men here. It at once becomes impossible. It must be used in a sense that will apply to both. The nearest term is prob

ably 'engage', and it is used like the word must allege the intent of the person hired. 'retaining', when speaking of retaining U. S. v. Kazinski (D. C. 1855), Fed. Cas. counsel. It is an engaging' of one party by the other, with the consent and understanding of both." (U. S. v. Kazinski (D. C. 1855), Fed. Cas. No. 15508.