quires us to exclude from this distribution the claims of sailors for losses of private property while in the employ of the Government? There is nothing in the practice of our own Government in dealing with these subjects which tends to support such a theory. The research of Mr. Butler, the counsel of one of the claimants, has brought to light three notable instances in which the Government has given practical answers to the question. By an act approved on 3d March, 1817, (6 Statutes at Large, 188,) six months' additional pay was given to the officers and seamen of the brig Epervier. By an act approved on 19th May, 1824, (6 Statutes at Large, 310,) an owner was paid a dividend of prize-money for the services of a slave on board the Wasp. By an act approved on the 24th of April, 1830, (6 Statutes at Large, 414,) six months' additional pay was given to the representatives of the officers, seamen, and marines who were lost in the Hornet. Nor are such acts on the part of any government unreasonable. Is there anything fitted to unnerve the arm of the soldier in the day of battle, to say to him that even if his life be lost, his Government will secure to his family the value of the little property which he may have acquired? In the late rebellion it was a common thing for citizens incapacitated by age or other causes from marching as soldiers, to promise to provide for the families of those who were willing to enlist. Did this render the man who enlisted a less effi cient soldier? We think not; but if mistaken, it is clear that such considerations were for the law-making power, not for us. If Congress, with this whole subject before it, deliberately chose to employ language broad enough to include the claims of persons actually in the employ of the Government, and not to exclude them by any exception, our exclusion of them would, in our best judgment, be not judicial decision, but that sort of judicial legislation from which every principle of official duty should cause us to shrink. We have, therefore, entered judgments in favor of the respective claimants for the actual value of the personal property destroyed in each case, after having deducted any allowances heretofore made under the statute of 1866.

RAYNER, J., dissenting.

GEO. M. ROBESON, SECRETARY OF THE NAVY,

complainant,

vs.

THE UNITED STATES, respondent.

No. 2066.

An award to the Navy Department would be an award to the Government, which already has complete ownership of the money paid by Great Britain under the award of the Tribunal of Arbitration, and now remaining in the Treasury.

Congress did not intend to give this court power to adjudicate upon the rights of the Government with regard to this fund. A statement of the case will be found in the opinion of the court.

Mr. John A. Bolles for the complainant.

Mr. Jno. A. J. Creswell for the respondent.

JEWELL, judge, delivered the opinion of the court:

This petition is made by the Secretary of the Navy in his official ca pacity, setting forth that the Navy Department purchased for the naval service the steamer St. Mary's at a cost of one hundred and ten thousand dollars; that she was equipped subsequently as a vessel of war, her name changed to the Hatteras, and that afterward she was destroyed by the Alabama; that the bark Greenland was chartered by the Navy

Department as a transport, the Department taking the risk of her destruction by any insurgent cruiser; that while so under charter she was destroyed by the Florida; and that the Navy Department, under and by force of said contract, did pay her owners for her loss the sum of twenty-three thousand five hundred dollars.

He therefore asks judgment for the cost of these two vessels. Under the original act constituting the court, several claims were filed by officers upon the Hatteras for property destroyed at the time of her loss, which claims were pending when the second act authorizing the filing of claims went into effect; and we infer that the presentation of these claims may have led the Secretary of the Navy, in his official capacity as representing the Navy Department, to think his duty required him to present this petition, lest he might at some time be thought remiss in the care of his special department, and be called to account therefor.

At the time the case was reached, the solicitor of the Navy Department and the counsel of the Government appointed to represent its interests before this court, submitted the whole matter to the consideration of the court.

We have, therefore, to consider whether a claim of this character is within the terms or the spirit of the law establishing this tribunal, and we are all clearly of opinion that Congress did not intend that we should consider any claims for property of the United States destroyed by any of the rebel cruisers.

It is well known that all claims for compensation for the loss of public property of the United States were either abandoned voluntarily by the counsel of the United States before the arbitrators at Geneva or were absolutely rejected by the tribunal itself, and the only damages. awarded were for the value of private vessels and property destroyed. The fund out of which our judgments are paid represents the estimated value of private property alone, and does not include anything based upon the value of public property destroyed.

The reclamation made upon Great Britain was made by our Government in its capacity of sovereign, and not as a mere representative of private interests, and the indemnity received has been paid to the United States as a government. The fund is now in the Treasury, entirely under the control of Congress, invested as directed by Congress, and was so when the act constituting this court was passed. Congress might have refused to pass any act providing for the indemnification of citizens; it might have retained the whole fund; it did appropriate such part of the fund as it judged just and right to be distributed among certain classes of claimants therefor. After the payment of the amount of our judgments, as provided by law, it may still retain the balance remaining, or it may provide for a further distribution among other classes of claimants. But in so doing it will dispose of its own; of money held in the Treasury of the Government, free from all restraints except those which ought to influence any sovereign power under the circumstances. No judgment of this court can change the character of this fund, or any part of it, so as to make it in any higher sense the property of the Government than it now is.

If our judgment in this respect would have any effect it would be to lessen the right or power of the Government over the unused balance. The Navy Department is a part of the Government itself, and any award we should make to it would be to the Government, and the effect of such award would rather be to lead to the conclusion that the remainder of the fund not needed to satisfy our judgments was not in

a just and true sense the property of the United States, over which Congress had supreme power and control. If our judgment is needed to confer upon the United States any title to a part of this fund, it would follow that the Government has not a complete title to the remainder.

We are satisfied that Congress did not intend to give us the power to adjudicate upon the rights of the Government in regard to this fund. It is unnecessary to set forth the technical objections to the present petition. It is quite enough to say that there is nothing in the act which requires us to sustain this claim, and there is very much in the general considerations connected with the subject, a few of which we have indicated, to lead us to the conclusion we have reached, that the petition must be dismissed.

The amendment of claims will be allowed: Where the court is satisfied that the original petition was filed in good faith; where the averment sought to be corrected originated in some error or want of information on the part of the claimant or his counsel; where the motion to àmend is made when a reasonable time, and where the Government has not, meanwhile, been misled in some material point in the preparation of its proofs.

STATEMENT OF THE CASE.

The complainant Schreiber moved (after the time for filing claims had expired) to amend his petition by substituting the gold-value of $15,000, instead of the value in currency, as the words "fifteen thousand dollars" standing alone in the prayer would be construed.

The claimant Parker moved that another party be added as complainant, his name having been accidentally omitted in drawing the petition.

Mr. Frank W. Hackett for the complainants.

The court derives it power to grant amendments from two sources: 1. Section 3 of the act approved June 23, 1874, which refers it for mode of procedure and practice to the circuit courts of the United States. 2. The common law and admiralty, wherever the circuit court does not afford the desired authority.

The circuit courts have always adopted broad and liberal views upon the subject of amendment. (U. S. Revised Statutes, p. 180, sec. 954; Smith vs. Barker, 3 Day, 314; The Harmony, 1 Gallison, 124; Gregg rs. Geir, 4 McLean, 208; Etting vs. Campbell, 5 Blatchford, 103; Hilliard rs. Brevoort, 4 McLean, 24; Walden vs. Craig, 9 Wheaton, 576; Conk. ling's Practice in U. S. Courts, 464; 1 Gallison, 22; Kennedy vs. Georgia State Bank, 8 How., 610; Weaver vs. Thompson, 1 Wall., jr., 343; The Adèle, 9 Cranch, 244; The Edward, 1 Wheaton, 261; Tiernan vs. Woodruff, 5 McLean, 135, U. S. Dig. Amend., 442; Cassell vs. Cook,

8 Serg. & R., 287; Newlin vs. Palmer, 11 id., 102; Haynes vs. Morgan, 3 Mass., 208; Eaton vs. Ogier, 2 Me., 46; Lake vs. Morse, 11 Ill., 587.) To increase the ad damnum of the petition is not to add a new res, or in any sense to institute a new suit.

Mr. J. A. J. Creswell for the respondent.

The court, under the act creating it, has no power to allow amend ments. To allow amendments after the time for filing claims has elapsed, is in effect to permit the new claims to be filed. (11th sec., act 23d June, 1874; Kidd vs. The United States, 8 Court of Claims, 259.)

PORTER, J., delivered the opinion of the court:

Motions have been made on behalf of the claimants, to amend the claims filed, respectively, in these cases. In some of them, it is proposed to describe certain articles of property altogether omitted. In others, it is sought to change the names of certain of the claimants, and to insert the names of other claimants. In a third class, leave is asked to state, at its value in currency, the amount of the demand originally claimed in gold. Lastly and chiefly, we are asked to allow a claimant to increase the amount of his claim, as set forth in his original petition. Some of these motions were argued soon after the court convened, and they have since been re-argued by some of the most eminent counsel who have appeared before us. The counsel of the United States has uniformly and earnestly opposed the motions. He insists that we have now no authority to allow amendments of this character. He points us to that part of the 11th section of the act of 23d June, 1874, which provides that all claims shall be "filed in said court within six months after the organization thereof," "and no claim shall be received, docketed or considered, that shall not have been so filed within the time aforesaid, but every such unrepresented claim shall be deemed and held to be finally and conclusively waived and barred." The time prescribed in this section, expired on the 22d of January, 1875. To allow such amendments, after the expiration of this period, the Government insists is, in effect, to allow the filing of new claims, in opposition to a prohibition of the act. This raises, in a distinct and definite form, the question of our authority to permit the filing of such amendments.

The power of courts of general jurisdiction to permit amendments of pleadings, has been generally favored by statute and by decision. The first English statute of jeofaile is more than five centuries old, having been passed in the reign of Edward III. Eleven statutes of similar purport have since been enacted, until in Great Britain scarcely any defect can now occur in pleading, at law or in equity, which the courts may not permit a party on reasonable terms to correct by proper amendment. In the following cases, some instructive examples of amendment may be found: Brown vs. Crump, 6 Taunton, 300; Taylor vs. Lyon, 2 Moore & Payne, 586; Carmarthin vs. Lewis, 6 Carrington & Payne, 608; Blunt rs. Cooke, 4 Manning & Granger, 458; Langford vs. Woods, 7 Manning & Granger, 625.

In almost every one of the United States, statutes and decisions have followed in the same direction. In Pennsylvania, for example, the names of the parties, the amount claimed, and even the form of the action, may be changed by amendment, on formal application to the court, but almost at the pleasure of the parties. (Cunningham vs. Day, 2 S. & R.,1; Franklin vs. Mackey, 16 S. & R., 117; Caldwell vs. Remmington, 2 Wharton, 132; Tassey vs. Church, 4 W. & S., 141; Good Intent Co. vs. Hartzell, 10 Harris, 277; Rangler vs. Hummell, 1 Wright, 130; Lycom

ing Ins. Co. vs. Shallerberger, 8 Wright, 259; Trego vs. Lewis, 8 P. F. Smith, 463.) Even after the jury has been sworn, such amendments are permitted in that State. (Cassell vs. Cooke, 8 S. & R., 268.) So in New York. (Merchant vs. Ins. Co., 2 Sanford, 669; Vibbard vs. Roderick, 51 Barbour, 616; Johnson vs. Brown, 57 Barbour, 118.) In the lastmentioned case, it was held that the amount of the damages claimed might be enlarged by an amendment of the complaint, at the discretion of the judge, and that no exception could be taken to such a decision. In Massachusetts, the plaintiff is allowed to amend his declaration in a real action by inserting a new and different description of the land. (Haynes vs. Morgan, 3 Mass., 208; Hill vs. Haskins, 8 Pickering, 83.) A declaration against one as maker of a promissory note may be amended so as to charge him as a guarantor. (Tenney vs. Price, 4 Pick., 385.) A new count for the enforcement of a claim growing out of the same transaction, act, or contract, on which the original declaration was founded, may generally be inserted as an amendment, however different the form of liability. (Smith es. Palmer, 6 Cushing, 513.) In almost all of the Western States, similar powers of amendment exist.

It should be observed in the study of these cases, especially in England, but also in many of our own States, that the legislative statutes commonly relied on did not confer the power of amendment, but were merely declaratory of a power at common law to permit amendments to the same extent. In the case of the Harmony (1 Gallison, 124) Story, J., did not hesitate to act on this doctrine. In Tiernan vs. Woodruff, (5 McLean, 143,) Wilkins, J., holds this language: "From a careful, and I may say laborious, consideration of the cases, both in England and in this country, and from a solicitude to avoid, if possible, any innovation upon the settled practice of the courts, I have arrived at the conclusion that it is competent at common law to amend the declaration by a new count, introductive of a new cause of action, provided such, amendment corresponds in character with the original count, is a kindred cause, admitting the same pleading and defense, and might have been included within the declaration originally filed, and especially where such cause is outlawed by the statute." It could not have been otherwise. The plead ings were originally conducted orally, and justice could scarcely have been done in any case if the party had been held strictly to his first statement of it. Doubtless he varied it as often as he stated it. It is a part of the history of the law that amendments were allowed in England before any statute of jeofail was passed. Indeed, it is a neces sary inference from all the authorities, ancient and modern, that such a power is inherent in every court.

The Court of Commissioners of Alabama Claims was, by the act of 23d June, 1874, constituted a court, not in form merely, but in every essential attribute of a court. It is called a court, and its members are des ignated as judges. It is required to meet and organize as a court. It is empowered to compel the attendance of parties and witnesses, to administer oaths, to preserve order, to punish for contempts, and to enforce the production of books and papers. It is required to hear and consider the allegations and proofs of the parties, to keep a record of its proceedings, to enter judgments, and to exercise, for certain purposes, the powers possessed by the circuit and district courts of the United States. Its jurisdiction is certainly limited to a particular class of subjects, but within the range of its jurisdiction its power to hear, to decide, and to enter judgment is as complete as could be claimed for any court of the most enlarged jurisdiction. If, therefore, nothing further was said in the act of Congress in regard to our powers, I would not have the least