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assignment, as shown by the findings of the Court of Claims, which recites that the Theresa was owned solely by John Royer Champagne and John Deyme, jr., and that the cargo was owned by John Royer Champagne and John Deyme, jr., and that both vessel and cargo were lost in the year 1795; that on February 23, 1802, Deyme executed a deed showing that he and Champagne had been partners from November 8, 1793, to November 8, 1798, and being anxious to close his relations with Champagne, for the consideration of $1,837.69 paid him by Champagne, Deyme sold, assigned, etc., to Champagne all property, real and personal, etc., arising out of the late copartnership of J. R. Champagne and J. Deyme, jr.,' etc.
The facts in the case show that John Deyme, jr., was an original sufferer as well as John Royer Champagne, and that the administrators of Champagne claim payment for the loss incurred by Deyme on the ground that any right that the latter had to indemnity was assigned to Champagne in 1802— nearly seven years after the claim for indemnity has arisen.
"The question whether this French spoliation claim, or any part thereof, is held by assignment is one for the accounting officers to decide, as will be seen from the case of Ghequiere v. Ghequiere, the ship Juliana (35 Ct. Cls., 400), wherein the court refused to issue a certificate that the claim was not held by assignment, on the ground that the proviso prohibiting the payment of a claim held by assignment was a direction to the Secretary of the Treasury. In the Brooks case (7 Comp. Dec., 422) the Comptroller exercised jurisdiction and decided that certain French spoliation claims were held by assignment.
"French spoliation claims are peculiar in that they are 'payments by way of gratuity and grace, and not as of right against the Government,' as decided in the case of Blagge v. Balch (162 U. S., 439) and by the case of Buchanan v. Patterson (190 U. S., 353). In the latter case it was held that although the Court of Claims had made an award in favor of the administratrix of the surviving partner of a firm, and Congress had made an appropriation for the payment thereof, and payment had been actually made, still the administratrix held the money only as trustee for the next of kin of the actual members of the firm who originally suffered the loss, her intestate not being one of the original sufferers, and therefore not entitled to share in the fund.
"It is clear that a portion of the present claim is held by assignment and that payment thereof could not be made unless the latter part of the proviso in the act of February 24, 1905, quoted above, modifies the expressed intention of Congress in the principal part of the proviso.
"In construing the proviso in the act of May 27, 1902, supra, which is apparently the same as the proviso in the act of February 24, 1905, the Comptroller decided that the Peter
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C. Brooks claims should be paid, although there was no doubt that they were held by assignment (10 Comp. Dec., 141). It will be seen from that decision that the latter part of the proviso then under consideration nullifies the first part of the proviso, and that the prohibition as to the payment of any claim held by assignment is without force and effect if the claim is in the same class as the Brooks claims, and as far as such claims are concerned the entire proviso might as well have been omitted from the act.
"Now, that portion of the claim of Champagne which originally belonged to Deyme, and which Champagne holds by assignment, does not seem to differ in any material way from the Brooks claims, and being apparently in the same class, I am of the opinion, and so decide, that in view of the decision of the Comptroller (10 Comp. Dec., 141) the administrators of Champagne are entitled to be paid the full amount appropriated to them by the act of February 24, 1905.
"The fact that the acts of 1891 and 1902 did not contain any claim of Champagne, and therefore that no money was paid his administrators thereunder, has no material bearing, for any claim of a class' similar to the Brooks claims would be payable whether actually a claim of Brooks or of Champagne.
I can not agree with the Auditor that a part of the Champagne claim is "held by assignment," within the purview of the proviso to the act of February 24, 1905, supra. The object of said proviso was to shut out claims which are not now held by the original sufferers or their heirs, but which are in the hands of persons who bought them for speculative purposes. There is a material difference between such a claim and one acquired, like Champagne's, in the final dissolution of a partnership. As a member of said firm Champagne had an undivided interest in the whole of said claim-was himself an original sufferer as to the entire claim-and the assignment to him of his partner's undivided interest therein on final dissolution of the partnership was not in reality a sale, but a distribution by deed between the partners of the partnership assets. It appears that the Court of Claims was also of the opinion that this claim is not "held by assignment," within the meaning of said proviso, as they state in their conclusions of law in the case that "the claimants, in their representative capacity, are the owners of said claim, which has never been assigned."
That Congress did not intend the proviso to apply to claims
like Champagne's is also indicated by the following provision found in a subsequent paragraph of the same act as the proviso, and relative to an almost similar claim, viz:
"That the Secretary of the Treasury be, and he is hereby, directed to pay Walter H. Taylor, administrator of Richard Taylor, deceased, of Norfolk, Virginia, the sum of $11,946.81, remaining unpaid, of the amount appropriated to be paid to John A. Brinner, junior, administrator of John Gilliat, deceased, of the firm of Gilliat and Taylor, in the act entitled
An act making appropriations to supply deficiencies in the appropriation for the fiscal year ending June 30, 1891, and for prior years, and for other purposes,' the same not being an assigned claim within the limitations of this act, but an asset conveyed by deed in the dissolution of the partnership of Gilliat and Taylor, said deed of conveyance of this claim from John and Thomas Gilliat of said firm to Richard Taylor, being dated May 12, 1800, and prior to the ratification of the treaty of September 13, 1800, and so much of the act of June 30, 1891, as authorized the payment of the said sum of $11,946.81 to the administrator of John Gilliat, deceased, is hereby repealed."
If the Taylor claim, supra, was not an assigned claim, within the meaning of said proviso, it is clear that the Champagne claim is not, as there is no material difference in the nature of the two claims.
For the reasons stated by me, the decision of the Auditor that the claim can be paid is approved.
LAST SICKNESS OF A DECEASED PENSIONER.
Insanity is "last sickness," within the meaning of the provision in the act of March 2, 1895, for reimbursing a person who pays the expenses of the last sickness of a deceased pensioner.
(Decision by Comptroller Tracewell, April 18, 1905.)
Amos D. Spurgeon appealed February 23, 1905, from the action of the Auditor for the Interior Department in settlement dated November 15, 1904. His claim, as brother, was for the reimbursement of expenses for the last sickness and burial of Madison Spurgeon, a pensioner who committed suicide January 9, 1902. On August 17, 1903, a certificate for a pension at $6 per month was granted to him for reimbursement purposes from April 7, 1893, to end January 9, 1902,
date of death, aggregating $630.60. There was no widow, the pensioner having been divorced from his wife December 18, 1897, and did not remarry. There was no minor child. His assets were valued at $284 by appraisers appointed by judge of probate court. The Auditor disallowed the claim because:
"the pensioner left sufficient assets to pay any reasonable charges connected with his last sickness and with his burial, the evidence showing that he was not confined to his bed or house during the alleged period of last sickness; that he was without medical attendance and committed suicide."
By the act of March 2, 1895 (28 Stat., 964), no part of an accrued pension can be paid:
"Except so much as may be necessary to reimburse the person who bore the expense of the last sickness and burial of the pensioner if he did not leave sufficient assets to meet such expense."
The items of the claim are:
For board of pensioner from May 15, 1900, to January 9, 1902, 86 weeks, at $3 ...
For personal attention, watching and care, same period, at $14
For clothing furnished, same period
The contention of the claimant is that during the period for which the above charges are made the pensioner was insane and so i as to have required his constant and unremitting care and attention.
It appears from the evidence filed and facts as shown that this pensioner was afflicted with insanity during a period of two or three years, and he was, for a portion of the time, fed, clothed, and given continuous attention and care by his brother, the claimant, while he was laboring under such malady or disease.
I am of the opinion that said affliction may be properly termed the "last sickness" of the pensioner within the meaning of the statute under consideration, and therefore the amount of the claim to the extent of the accrued pension will be allowed.
It should not be understood that the charge of $2 per day
for the care of the pensioner was acquiesced in because it was a reasonable one, but inasmuch as the amount of the accrued pension would still be payable if the charge were reduced one-half, or $1 per day, a further discussion of this branch of the question is not deemed necessary.
The action of the Auditor is reversed.
ASSESSMENTS MADE BY CITIES AGAINST
The United States is not liable for an assessment levied against its property by local State authorities for sewerage purposes.
(Decision by Comptroller Tracewell, April 18, 1905.)
The Auditor for the Treasury Department, by settlement dated April 10, 1905, of the account of E. T. Payne, collector of taxes of the city of Atlanta, Ga., for amount of assessment against the United States for the construction of a sewer along the front of premises belonging to the United States at No. 256 Linden street, Atlanta, disallowed the amount claimed, namely, $39.20. The Secretary of the Treasury by application filed April 10, 1905, has requested a revision of the account.
In a communication from the Solicitor of the Treasury to the Secretary of the Treasury, dated April 7, 1905, he states that the premises referred to were acquired by the United States in 1886 in satisfaction of a judgment debt, and that the district attorney of the United States at Atlanta says that—
"This sewer assessment against said property is made by the mayor and general council of the city of Atlanta under' an act of the legislature of December 20, 1898, giving the mayor and general council of the city of Atlanta power and authority to provide by ordinance for the collection of assessments for construction of sewers. Under the ordinance the abutting property would have no right to connect its drain. for the discharge of sewerage into said sewer unless the cost thereof as assessed against said property is paid.
"In the case of a local sewer assessment the abutting property can not connect the sewer nor discharge the sewerage from that lot into said sewer unless the property pays its pro rata share of the cost of the construction of said sewer, and