fied and assented to the alterations of the original contract. (Martin v. United States, 5 N. & H., 216; and see Dougherty v. United States, ibid., 108; Crary v. United States, ibid., 231; Thorne v. United States, ibid., 242; Sweeney v. United States, ibid., 285; Wilcox v. United States, ibid., 386.)

The adoption of a new rule for the inspection of Government horses, if a reasonable one for the purpose of guarding against frauds, is no breach on the part of the Government of a prior contract. (United States v. Wormer, 13 Wall., 25; reversing S. C. 4 N. & H., 258; Smoot v. United States, 15 Wall., 36; reversing S. C. 5 N. & H., 490; and affirming Spicer v. United States, 1 N. & H., 316; and see Kerchner v. United States, 7 N. & H., 579.)

No action can be maintained on a contract the consideration of which is prohibited by law. (Martin v. Bartow Iron Works, 35 Geo., 320; Lanham v. Patterson, 13 Int. R. Rec., 142; The Pioneer, 1 Deady, 72.)

A contract to do an act forbidden by law is void, and can not be enforced in a court of justice. (Dill v. Ellicott, Tan. Dec., 233.)

Where a contract is positively forbidden by law, the parties being in pari delicto, no action can be maintained on it in a court of law. (Thomas v. Richmond, 12 Wall., 349.)

*

*

In Clark v. The United States, the Supreme Court says: The acts of Congress (now Revised Statutes, section 3744) which makes it the duty of the Secretary of War, etc., * to require every contract made by them severally on behalf of the Government, or by officers under them appointed to make such contracts, to be reduced to writing and signed by the contracting parties, is mandatory, and in effect prohibits and renders unlawful any other mode of making the contract. Where, however, a parol contract has been wholly or partly executed on one side, the party performing will be entitled to recover the fair value of his property or service as upon an implied contract for a quantum meruit. (Clark v. The United States, 95 U. S. R., 539.)

66

The act of 17th July, 1862 (12 Stat., p. 596), which declares that no contract shall be transferred, and that any such transfer shall cause the annulment of the contract," does not apply to a case where the transfer was made nine days before the approval of the act. (Chollar v. United States, 2 N. & H., p. 319; Robertson ". United States, ibid., 322)

In matters of contract, the United States is controlled by same laws as individuals. (U. S. v. De Visser, 10 Fed. Rep., 658; U. S. v. Campbell, Id., 821; U. S. v. Beebe, 4 McCrary, 18; S. C. Fed. Rep., 41. See further Bostwick v. U. S., 94 U. S., 58, 69; Murray v. Charleston, 96 U. S., 432; U. S. v. Anderson, 9 Wall., 56-72.)

A contract made with a public enemy during a state of war can not be enforced after its termination. (Phillips v. Hatch, 4 West. Jur., 399.)

A transaction originally unlawful, such as a person's unlawful trading in behalf of another with a public

enemy, can not be made lawful by any ratification. (United States v. Grossmayer, 9 Wall., 72.)

Any contract tinctured with the vice of giving aid and support to the rebellion is void; thus, due-bills given for goods sold for the use of the insurgent government are not a good consideration in part for a promissory note; the entire note is invalid. (Hanauer v. Doane, 12 Wall., 342.)

A contract on behalf of the Government, approved by the Secretary of War, with an officer of the Army, is not illegal, under the Army Regulations; the Secretary, though head of the Department, not being in the military service. (United States v. Burns, 12 Wall., 246.)

No action will lie against the Government for the breach of a contract which has been assigned in violation of the act of 1862; but if there have been a delivery and acceptance of goods, under the contract, an action on a quantum meruit may be maintained, in the name of the contractor, for the use of the assignee. (Wheeler v. United States, 5 N. & H., 504.)

Where a commanding general, in a military emergency, orders the purchase of a limited number of horses, within a brief, prescribed time, at an unusually high price, to be inspected by a board of officers, and the contractor complies with all the conditions, the sale is valid, and the Quartermaster-General has no power to reduce the price. (Wilcox v. United States, 5 N. & H., 386.)

An action to recover for impairing a navigable waterway by the erection of a dike, which does not encroach upon the claimant's property, is an action for damages for injuries, without the element of contract. (Gibson's Case, 29 C. Cls. R., p. 18.)

Where a regulation requires a deputy marshal to certify under oath as to his accounts, and does not name a commissioner nor prescribe any service for him in connection with the accounts, it established no privity between him and the Government. (McKinstry's Case, 29 C. Cls. R., p. 52.)

The fact that an agent is to be paid by the day contemplates a daily service. (Ebert's Case, 29 C. Cls. R., p. 183.)

Where the damage alleged is simply consequential, resulting from the negligence of public agents in not removing a wrecked vessel belonging to the United States, no contract can be implied. (McArthur's Case, 29 C. Cls. R., p. 191.)

Where the Government takes property avowedly as its own, no contract can be implied. (Merriam's Case, 29 C. Cls. R., p. 250.)

Where the Government occupies land by the overflow of water with no claim of title, an implied contract arises. Ib.

Since the act 2d June, 1862, requiring the contracts of the War, Navy, and Interior Departments to be in writing, an action can not be brought by the principal, where a contract with those Departments was in the name of the agent. (Cathedral Case, 29 C. Cls. R., p. 269.)

Where a contractor obligates himself to perform, the words after his name," Treasurer of the Cathedral Chapter," etc., are words of description only. Ib.

Where the seizure of a turnpike was for military purposes with no intent to compensate the owners, no contract for use and occupancy can be implied. (Brown's Case, 29 C. Cls. R., p. 394.)

The validity of a contract depends upon the law of the place where it has been made; if valid there, it is valid in general everywhere; and, vice versa, if void or illegal there, it is in general void everywhere. (Story Compl. of L., 242, 243; Bank of the United States v. Donnally, 8 Peters, p. 361; Dunscomb v. Banker, 2 Mets Mass., 8.)

The act of 17th July, 1862 (12 Stat., p. 596), prohibits any transfer of a Government contract by the party to whom it is given, and provides that such a transfer "shall cause the annulment of the contract, so far as the United States are concerned." This is imperative and absolute, and bars any action by the assignor as well as the assignee. (Wanless' case, 6 C. Cls. R., p. 123.)

An act of Congress directing the Secretary of the Navy to enter into a contract with certain parties, provided it could be done on terms previously offered by the parties, does not, of itself, create a contract. (Gilbert & Secor v. The United States, 8 Wall., p. 358.)

If such parties afterwards sign a written agreement with the Secretary, on terms less favorable to them than the act of Congress authorized the Secretary to make, they must abide by their action in accepting the less favorable terms. (Ibid.)

The owner of a patent for concrete pavement protests against the pavement in the Capitol Grounds being laid by the contractor, and notifies the Architect of the Capitol that it will be an infringement of his patent. He now brings an action in the nature of an infringement. The Court of Claims decides:

1. A contract may be implied whenever the Government, acting through a competent agent, takes private property, acknowledging explicitly or tacitly that it is

such.

2. When there is a denial of private right in an alleged invention used by the Government, the appropriation or use is in the nature of a tort, and this court is without jurisdiction.

3. When the proper agent of the Government does not acknowledge the validity of a patent, nor recognize the

work done by his authority as embodying or infringing the invention, no contract can be implied.

4. If tangible property be appropriated the owner thereby suffers loss, and the Government at the same time acquires value, and a contract may be implied, though the act of the agent was unauthorized; but the use of the patented process or article deprives the owner of nothing of intrinsic value, and is per se only an invasion of a right. (John J. Schillinger et al. v. The United States, 24 C. Cls. R., p. 278.)

NOTE. The decision of the Court of Claims in this case was affirmed on the same grounds by the Supreme Court of the United States. (See 155 U. S. Reports, p. 163.)

A contract can not be implied where the officers of the Government use an invention through ignorance, carelessness, or mistake, nor from the unauthorized use of an invention by a public officer. (Sullivan Forehand et al. v. The United States, 23 C. Cls. R., p. 477.)

The use of an invention without the consent of a patentee, express or implied, is an infringement, not a taking of property under an implied contract. (Ibid.)

The jurisdiction of this court does not extend to an action for the use of an invention, unless a contract can be implied from the circumstances of the user. (Ibid.)

The decision in Cobb, Christy & Co.'s case (7 C. Cls. R., p. 470), that the act of June 2, 1862 (12 Stat. L., p. 411), requiring contracts with the Government to be in writing, was suspended during the rebellion by the act of July 4, 1864 (13 Stat. L., sec. 4, p. 394), in cases of emergency, re-affirmed. (Thompson's case, 9 C. Cls. R., p. 187.)

The purchase of military supplies for a military emergency during the rebellion is governed exclusively by the act of July 4, 1864 (13 Stat. L., p. 394, sec. 4), and not by the act of March 2, 1861, nor by the act of June 2, 1862. Therefore, when the emergency has been declared by the commanding general, the necessary supplies need not be purchased by advertisement, nor need the contract be in writing. (O. P. Cobb et al. v. The United States, 7 C. Cls. R., p. 470.)

Where the Government refuses to accept the goods under its contract, the measure of damages is the difference between the contract price and the market value at the time of the breach. (Ibid.) This rule has been applied in Government cases. (Shepherd v. Hampton, 3 Wheat., 204; Hughes v. The United States, 4 C. Cls. R., 72; Grover v. The United States, 5 C. Cls. R., 429; Wilder v. The United States, 5 C. Cls. R., 472.)

CLAIMS GROWING OUT OF THE OCCUPATION OF REAL
ESTATE.

[14 Stat. L., p. 397.]

AN ACT to declare the sense of an act entitled "An act to restrict the jurisdiction of the Court of Claims, and to provide for the payment of certain demands for quartermaster's stores and subsistence supplies furnished to the Army of the United States," as follows:

supplies, etc.,

troops, or for

by them in a

rection, or,

entertained by

Vol. xii, p.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of chapter 240 of the acts of Claims for the Thirty-eighth Congress, first session, approved July taken or used 4, 1864, shall not be construed to authorize the settlement by Union of any claim for supplies or stores taken or furnished injuries caused for the use of or used by the armies of the United States, State, etc., denor for the occupation of or injury to real estate, nor for clared in insurthe consumption, appropriation, or destruction of or etc., not to be damage to personal property by the military authorities Court of or troops of the United States when such claim origi- Claims. nated during the war for the suppression of the southern 1266. rebellion in a State, or any part of a State, declared in insurrection by the proclamation of the President of the United States, dated July 1, 1862, or in a State which, by an ordinance of secession, attempted to withdraw from the United States Government: Provided, That Tennessee nothing herein contained shall repeal or modify the ginia excepted. effects of any act or joint resolution extending the provisions of the said act of July 4, 1864, to the loyal citizens of the State of Tennessee, or to the State of West Virginia, or any county thereof.

Indorsed by the President: "Received February 9, 1867."

[NOTE BY THE STATE DEPARTMENT. The foregoing act having been presented to the President of the United States for his approval, and not having been returned by him to the House of Congress in which it originated within the time prescribed by the Constitution of the United States, has become a law without his approval.]

and West Vir

Ante, p. 370.
Ante, p. 360.

OPINIONS OF ACCOUNTING OFFICERS OF THE TREASURY

DEPARTMENT.

Following are copies of opinions of accounting officers of the Treasury Department on certain claims for the use and occupation of real estate:

DECEMBER 22, 1881.

SIR: I have the honor to acknowledge the receipt of your letter of the 18th instant, in which you ask what is "the status of claims for occupation, by Union forces during the war, of real estate of loyal citizens in States in rebellion, now pending, and what legislation is proper by Congress," and respectfully reply as follows:

There has been much conflict of opinion as to the power and authority of the accounting officers to audit claims of this kind, but during several years past it has been held that the Auditor