on principles of justice and equity, all damages, losses and liabilities incurred or sustained by said parties, respectively, on account of their contract for manufacturing brick for the Washington aqueduct, etc., and that the said contract be canceled."

The Secretary of the Treasury adjusted the laims of the parties for which provision was made in said resolution, and the appellant received, as the result of that adjudication, the sum of $7,576. The appellant was dissatisfied with this allowance, and he again appealed to Congress. The result of this appeal was the passage by Congress of the Joint Resolution approved June 15, 1860. That resolution was as follows:

"That, in the further execution of the Joint Resolution of the 3d of March, 1857, relative to the settlement of the damages, losses, and liabilities incurred by certain parties interested in the contract for furnishing brick for the Washington aqueduct, the Secretary of War be, and hereby is directed and required to settle the account of William H. De Groot on princi- | ples of justice and equity, allowing to the said De Groot the amount of money actually expended by him, in and about the execution of the said contract; and also to indemnify him for such losses, liabilities, and damages, as, by virtue of said Joint Resolution, he was entitled to receive."

Aug. 17, 1860, the Secretary of War made his award under said resolution, of $119,234.46. This award was not paid; and on February 21, 1861, the following Joint Resolution was approved:

"That the Joint Resolution, approved June 15, 1860, for the relief of William H. DeGroot, be, and the same is hereby repealed, and that the Secretary of War be, and he is hereby, directed to transmit all the papers in his department relating to the case of the said William H. De Groot, to the court of claims for adjudication."

In the court of claims there was a demurrer to the claim.

The claimant in the court below relied exclusively upon the award made by the Secretary of War, Floyd, and offered no other evidence.

The case further appears in the opinion. Messrs. Henry Bennett, Platt & Mitchell, Thos. P. How, and David Dudley Field, for appellant:

The court below held that the decision of the Secretary was an award, and governed by the law applicable to awards, and that claimant was entitled, upon the demurrer, to judgment upon the award, it being for debt certain in amount. In such cases, no damages are to be assessed.

1 Stat. U. S. 87, § 26; Graham, Pr. 2d ed. 760, 798; Dunl. Pr. 382; 6 Johns. 287; 2 Sandf. 101, 107, and note; 1 Bos. & P. 368; 1 Str. 512; 1 Doug. 385; 1 Esp. 157.

The decision of the arbitrator as to the amount, upon all the facts before him, was final and conclusive, and cannot be retried or re-examined.

17 How. 344, 349, 15 L. ed. 96, 99; 6 Met. 131, 165, 166; 2 Cow. & H. notes, 1025, 1026, 1031, 1034, 1293.

"No answer was filed by defendants to the amended petition, nor to the original petition

except the aforesaid demurrer." They were ad mitted and the action stood undefended.

The default was also an admission of the facts; and upon the record, claimant was enti tled to judgment without proof; the award being for a debt certain.

Graham, Pr. 2d ed. 790; 3 Cow. 296, 297; 1 Chit. 372; Ryan & M. 41; 2 Johns. Cas. 228; 10 Wend. 377; 1 Str. 612; 1 Bos. & P. 308; 1 U. S. Stat. 87, § 26.

Nothing can be pleaded or proved against an award.

4 N. Y. 568, 574, 575; 37 Barb. 251, 256, 257; 1 Barb. Ch. 173; 17 How. 344, 349, 15 L. ed. 96, 99; 6 Met. 131, 165; 23 Barb. 187, 196; 2 Wils. 148; 8 East, 344; 1 Sand. 307, and note cited.

An award duly made under the law of 1860, was good and valid. Its repeal afterwards, in 1861, did not invalidate the award. "Vested rights acquired under a law are not devested by its repeal."

Smith, Stat. and Const. L. §§ 760 to 767; 2 Bouv. L. Dic. 448, § 6, and cases cited; 18 How. 421, 431, 15 L. ed. 435, 437; 10 Barb. Ń. Y. 223, 244; 4 Burr. 2470; 7 Johns. 477, 509; 10 N. Y. 374, 392, 393; Kent, Com. 455, note 3; 8 Md. 551; 2 Pet. 657; 12 Pet. 611; 2 Cranch, 272; 7 Cranch, 164; 4 Barb. 64, 70, 75; 6 Cranch, 87, 132, 135, 136, 143, etc.; 28 N.' Y. 400, 411; 17 Johns. 195, 215.

And, by the demurrer and default, the facts stated stood admitted the same as if they had been found by a jury.

5 Litt. 167, 168.

As no appeal or review was provided for in this case, the award of the arbitrator was final and conclusive. The case could go no further. It was the judgment of the court of last resort.

Burchard v. Marsh, 17 How. 344, 349, 15 L. ed. 96, 99; Boston Water Co. v. Gray, 6 Met. 131, 165; 37 Barb. N. Y. 251, 256, 257; Fletcher v. Peck, 6 Cranch, 87, 135, 136, 143; Buckley v. Stewart, 1 Day, 130, 153; Mesick v. Wright, 1 Grant, Pa. Cas. 437, 152; 1 Cow. & H. notes, 1025, 1026, 1031, 1034, 1293; 1 Op. Atty. Gen. 605; 14 Johns 96, 105; 4 N. Y. 567, 574, 575; 26 How. Pr. 346, 350; 12 N. Y. 1, 15; 35 Barb. 308, 316; 12 Pet. 611.

Mr. John J. Weed, for the United States: This court will take this finding of the facts as the ultimate facts upon which this appeal is to be heard. This question is settled by the rules of this court, regulating appeals from the Court of Claims to this court, as well as by the principles announced in the case of Burr v. Des Moines Co. 1 Wall. 99, 17 L. ed. 561.

The repealing resolution of February 21, 1861, was only a remedial act; it did not destroy nor in any manner affect any right vested in the appellant by either of the two resolutions previously passed upon the same subject. This repealing act only changed the tribunal which was to pass upon the claimant's rights. The existence of the power in Congress, to do this, is undeniable. It may, at any time, change the remedies by which the rights of parties may be determined. It may abolish one court and create others.

Calder v. Bull, 3 Dall. 385; Hope v. Johnson, 2 Yerg. 123; Vanzandt v. Waddle, 2 Yerg. 260; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Pet. 380; Charles River Bridge v. Warren Bridge, 11 Pet. 540; Baugher v. Nelson, 9 Gill, 304–306.

ion of the court:

This is the first appeal from the court of claims which we have been called upon to consider since the rules framed by this court regulating such appeals; and the inconsistency between the record presented and the requirements of those rules calls for some observations in this place.

This case, having been decided before they were published, comes under the provisions of the second rule. That rule requires, in addition to the pleadings of the parties and the orders of the court, a specification of the matters alleged for error to be certified by the court, if presented to it correctly by the appellant, and if not correctly stated by him, to be modified according to the truth of the case by the court. The object of this rule, as well as of the first, is to present in simple form the questions of law which arose in the progress of the case, and which were decided by the court adversely to appellant. Only such statement of facts is intended to be brought to this court as may be necessary to enable it to decide upon the correctness of the propositions of law ruled by the Court of Claims, and that is to be presented in the shape of the facts found by that court to be established by the evidence (in such form) as to raise the legal question decided by the court. It should not include the evidence in detail.

a

We have here, beside this simple statement, record of two hundred and forty pages of printed matter, of which it is fair to say that two hundred are details of evidence excluded by the rule. We were inclined at first to dismiss the appeal for want of a proper record, but upon a closer examination it was discovered that the court below had in good faith complied with the rule, so far as to give the certified statement of the facts found, and of their legal conclusions thereon, and this, with the pleadings, judgment, and other orders in the case, enables us to examine the alleged error in the rulings of the court within the principles we have stated.

The court, however, has, at the request of claimant's counsel, returned the evidence on both sides, which makes the bulky and useless part of the record.

We take this occasion to say that we shall adhere strictly to the rules we have prescribed, and shall regard no other matter found in the transcripts sent to us than what they allow; and that in proper cases the costs of the useless part of the record will be taxed against the party who brings it here.

428*] *With these preliminary remarks, we proceed to examine the merits of the case.

It is a claim against the United States founded on an award. The statement of facts by the court below informs us that "the claimant has not seen proper to submit any evidence to sustain his original cause of action, but rests his case entirely upon the validity and conclusiveness of the award made by the Secretary of

War."

Among other conclusions of law, the court held the following in reference to this award, which, as they dispose of the case, are all that we need consider."

"1. That, by including in the award the value or price of the real estate upon which the brickyard was located, Floyd exceeded the

2d. That having commingled such allowances with the general finding in such manner as to be incapable of separation, it thereby vitiated the whole award.

4th. Floyd having thus exceeded the powers conferred upon him, it was competent for Congress to disaffirm his acts and revoke the authority conferred upon him, by a repeal of the resolution under which he acted."

That part of the record which is here decided not to be within the submission, is thus stated in the award itself:

"It must be remembered that when Mr. De Groot's contract was surrendered he delivered to the United States the brickyard at Hunting Park, with its appurtenances, machinery and improvements. All these he would have_retained had his contract been carried out. But this property was surrendered to the United States in compliance with the requirements of the Joint Resolution of March 3, 1857. It was, I think, clearly the intention of Congress to make compensation for the loss which he thus sustained. And, accordingly, in addition to the damages already allowed, it is proper to refund to Mr. De Groot such items of expenditure as were necessarily involved in the purchase and improvement of his brickyard and its appurtenances.

*"These are stated on the schedule, which is supported by vouchers, amounting to

"Add estimated profits

"Add price of brick delivered and surrendered by De Groot......

"Total amount

[*429 $29,323 22 86,922 81

28,603 34

$144,849 37"

The award then deducts certain payments made, leaving a balance of $119,234.46.

The Joint Resolution above mentioned, of March 3, 1857, lies at the foundation of this claim, and it authorized the Secretary of the Treasury to settle and adjust with all the parties respectively interested therein, on principles of justice and equity, all damages, losses, and liabilities incurred or sustained by said parties on account of their contract for manufac turing brick for the Washington aqueduct, and contained this provision: "That the said parties first surrender to the United States all the bricks made, together with all the machines and appliances, and other personal property prepared for executing the said contract, and the said contract be canceled."

It is pretty clear that, without the proviso at the close of the resolution, the Secretary could have acted on no other principle than that of compensating the parties interested for losses and damages growing out of a suspension or abandonment of the contract by the govern ment, and that this must have been based upon the position of the parties as they stood at the time the resolution passed.

What brick the

claimants had delivered would have been the property of the United States. All the brick they had on hand not delivered, with the material, tools, machines, and grounds, would have been the property of claimants, and the damages growing out of this branch of the inquiry would have been the loss sustained by these being rendered useless or less valuable to their

In what respect, then, does the proviso change this basis of estimating damages? It changes it by requiring the claimants to transfer to the United States certain things they were using in the manufacture of brick for the government, and allowing compensation for the value of those things, instead of damages for their deterioration. The things thus to be surrendered were "all the brick made, together with all the machinery and appliances, and other personal property prepared for executing the contract."

It is not possible to hold that the land on which the bricks were made, or any improvements on it which has become part of the realty, comes within any of the classes of property here enumerated. It was not bricks; it was not machinery or appliances, and it was 430*] not personal property. The phrase "other personal property" implies that only personal property had been previously described.

It is true that the Secretary of War, in making his award, did not derive his power to act as arbitrator from the joint resolution which we have been construing, but from another joint resolution of June 15, 1860. The first resolution referred the matter to the Secretary of the Treasury, and that officer having made his award, Mr. De Groot, after receiving under it $7,576, refused to abide by it, and applied to Congress for further relief. That body referred his claim to the Secretary of War by the resolution of June 15, 1860, but directed him to proceed in the further execution of the resolution of March 3, 1857, and to indemnify De Groot for such losses, liabilities, and damages as by virtue of said joint resolution he was entitled to receive. It will thus be seen that, while the tribunal was changed, it was to be governed by the principles prescribed by the resolution which we have just construed.

The Secretary of War, then, manifestly exceeded his powers as arbitrator when he awarded to claimant the value of the real estate on which the brickyard was located, and the money involved in the purchase of it by said claimant. It is however, not always that an award is invalid because in some respects it exceeds the submission, for it is said that if the part which is in excess can be clearly separated from the remainder which is within the submission, the latter may stand.

This, as a general rule, is true, but it is subject to some qualifications, one of which is expressed by Chief Justice Marshall, speaking for this court in the case of Carnochan v. Christie, 11 Wheat. 446, to the effect, that the award to be valid ought to be in itself a complete adjustment of the controversies submitted to the arbitrators.

There is no means by which the sum allowed by the Secretary for this land can be separated from the other allowances made for the personal property, machines, and appliances 431*] *transferred by claimant to the United States. They are all summed up in one grand item of $29,323.22. What proportion of this item is for the land it is impossible to tell. If we reject the whole of this item, then the claimant has no allowance for the machines, appliances, and personal property transferred to the

It thus appears that the arbitrator has exceeded his authority in some respects, that he has failed to award as to other matters submitted to him, and that in the award made, these matters cannot be distinguished from cach other.

The United States cannot, after having twice referred these matters to arbitration-the second time on account of the dissatisfaction of the claimant with the result of the first-be bound now to accept an award which clearly does not dispose of part of the demands submitted, and which allows large sums for matters not submitted.

If these views be sound, the first two propositions of law decided by the court of claims were well decided.

We think the fourth proposition equally clear. The government of the United States cannot be sued for a claim or demand against it without its consent. This rule is carried so far by this court, that it has been held that when the United States is plaintiff in one of the Federal Courts, and the defendant has pleaded a set-off which the acts of Congress have authorized him to rely on, no judgment can be rendered against the government, although it may be judicially ascertained that on striking a balance of just demands the government is indebted to the defendant in an ascertained amount. And if the United States shall sue an individual in any of her courts, and fail to establish a claim, no judgment can be rendered for the costs expended by the defendant in his defense.

If, therefore, the court of claims has the right to entertain jurisdiction of cases in which the United States is defendant, and to render judgment against that defendant, it *is [*432 only by virtue of acts of Congress granting such jurisdiction, and it is limited precisely to such cases, both in regard to parties and to the cause of action, as Congress has prescribed.

It is true that, ordinarily, when we seek for the foundation of this jurisdiction, we look to the general laws creating the court, and defining causes of which it may have cognizance. But it is equally true that whenever Congress chooses to withdraw from that jurisdiction any class of cases which had before been committed to its control, as it has done more than once, it has the power to do so, or to prescribe the rule by which such cases may be determined. right to do this in regard to any particular case, as well as to a class of cases, must rest on the same foundation; and no reason can be perceived why Congress may not at any time withdraw a particular case from the cognizance of that court, or prescribe in such case the circumstances under which alone the court may render a judgment against the government.

Its

The court of claims, in the adjudication of the case before us, has been acting under one of these special acts of the Legislative Department. A third joint resolution on the subject of this claim was passed by Congress and approved July 21st, 1861, some months after the award of the Secretary of War was published. This resolution declares "that the Joint Resolution

liam H. De Groot, be, and the same is hereby, repealed, and that the Secretary of War be, and he is hereby, directed to transmit all papers in his department relating to the case of said William H. De Groot to the court of claims for examination."

The case being transferred from the Secretary of War to the court of claims, with a repeal of the resolution under which the Secretary had acted, must be considered as coming into that court with the limitations prescribed by that resolution. This shows very clearly that Congress intended that no judgment should be rendered against the government on the award of the Secretary of War, but that the examination to be made by the court of claims should 433*] be free from that embarrassment. Could that court entertain jurisdiction of the case and violate this requirement?

It is said by claimant that the case did not come into that court under that resolution, but was brought there by his own petition. But, however it may have come there, the rule prescribed by Congress adheres to it, if Congress had the right to prescribe it. Entertaining no doubt of the power of the legislative body to define the terms on which the judgments may be rendered against the government as to classes of cases, or as to individual cases, we think the court of claims was bound to accept the resolution of February, 1861, as the law of the case in that court. The effect of this resolution on the award, if it should ever come in question in a court not limited by the restrictions which govern that court, we need not decide.

As we can only consider here what judgment that court should have rendered, we conclude that its judgment was right, and it is therefore affirmed.

trict of Columbia.

The declaration in this case consists of four counts.

The first two proceed on an alleged custom of bankers in this city, to receive gold and silver coin, bank and other notes, on deposit, keeping separate entries of the character of the deposit, and to respond to the checks drawn upon them, in kind; to pay coin, for deposits in coin; and notes, for deposits in notes; and that the plaintiffs so dealt with the defendants, and having a large balance to their credit, in February, 1864, in gold coin, they drew two checks for coin, payment on which was refused. The other two counts are on a special agreement between plaintiffs and defendants, in substance and effect the same as the usage and custom above stated, arising in like manner; they allege that there was a large balance in gold and silver coin standing to their credit on the books of defendants February 23, 1864; that they drew two checks on them at that date, which defendants refused to pay in coin; that coin at that time was worth $1.57 in treasury notes; and they seek, in all the counts, compensation in damages for injuries resulting to them by the refusal of the defendants to pay the respective checks.

The pleas are: first, that the defendants did not promise as alleged; second, that, on the presentation of the checks, the plaintiffs offered to pay the said several sums of money in the treasury notes issued by the Treasurer of the United States and by law made a legal tender in payment of debts; and from that time they have been and still are ready to pay the same as aforesaid, and now bring the same into court ready to be paid to said plaintiffs if they will accept them.

Issue was joined.

Plffs. in Err.,

v.

GEORGE W. RIGGS et al.

(See S. C: 5 Wall. 663-680.)

Instructions requested or given to jury do not become a part of the record, unless made so by a regular bill of exceptions sealed by the judge who presided at the trial.

The regulations respecting the removal of cases from the supreme court of the District of Columbia on writs of error or appeal, are the same as from the circuit courts of the United States.

Where a deposit in a bank is general, and there is no special agreement proved, the title of the money deposited passes to the bank, and the bank becomes liable for the amount, as a debt which can only be discharged by such money as is, by law, a legal tender.

Usage, contrary to law or inconsistent with the contract, is never admitted to control the general rules of law or the real intent and meaning of the parties.

[No. 176.]

Argued May 9, 1867. Decided May 16, 1867.

NOTE.--Liability of bank for general depositssee note, 21 L. ed. U. S. 473.

Usage or custom, admissibility of in construction of contracts-see note, 14 L. ed. U. S. 805.

keep it till the bringing of the suit.

They further gave evidence that, prior to the suspension of specie payment in April, 1861, the defendants paid all checks of their customers in gold or its equivalent, except when the deposit was made in Virginia or other depreciated paper, and then they paid in like kind. And after the act of February, 1862, making certain treasury notes a legal tender, they uniformly made with their customers depositing with them, a difference in receiving and paying their deposits between coin and paper money, and in all cases when the deposit was in coin, they paid the check of their customers in coin when they called for coin; otherwise they paid in currency, or treasury or bank notes; and the different deposits were designated by being marked in the bank books and cash books respectively, as coin and currency.

They then offered to prove that this was the uniform usage and mode of dealing by all the

banks and bankers in the District of Columbia.

It was admitted that, when the checks were presented, the defendants offered to pay them in legal tender notes.

The court refused to instruct the jury as follows:

That, by the Constitution of the United States, no tender of the payment of a debt is good unless the same is made in gold and silver coin; and, therefore, the offer of the defendants to pay said check in legal tender notes, is no defense in this action; and instead thereof, gave another as follows:

If the jury find, from the evidence, that the defendants were bankers in the years 1861 and 1862, and that the coin, mentioned in the declaration, was deposited with said defendants as bankers, to be repaid in coin, said deposit created a debt from the defendants to the plaintiffs, which could be discharged by payment or offer to pay the same in legal tender notes; and if the jury further find that said tender was nade, the plaintiffs were not entitled to recover in the action.

To this ruling the plaintiffs excepted. The jury found for defendants. Messrs. Joseph H. Bradley and Nathl. Wilson, for plaintiffs in error:

The court erred in refusing to allow us to prove the averments of the declaration, and rejected evidence from which, unaided by express stipulation, the jury might have found and the law inferred an obligation to return specie deposits in kind.

The uniform custom of banks in the District of Columbia, constitutes a part of the contracts between bankers and depositors.

Renner v. Bank of Columbia, 9 Wheat. 582; 1 Sm. Lead. Cas. 679; 1 Pars. Cont. 48, 49. The court erred in granting the instruction asked by the defendants. Neither the letter nor the policy of the Legal Tender Acts affects u contract such as that set out in the record.

Metr. Bank v. Van Dyck, 27 N. Y. 400; Shoenberger v. Watts-District Court of Philadelphia, I Am. Law Reg. 553; Wood v. Bullens, 6 Allen (Mass.), 516; Buchyger v. Schultz, 5 Am. Law Reg. 95; Carpenter v. Atherton, 21 Am. Law Reg. 225, Feb. 1865; Barrington v. Potter, 1 Dyer, 81 b; 20 Vin. ab. 177, 178; Pong 7. Lindsey, 1 Dyer, 82 a; Robinson v. Noble, 8 Pet. 181; Faw v. Marsteller, 2 Cranch, 30. Messrs. J. M. Carlisle and W. S. Cox, for defendants in error:

The second instruction asked by the plaintiffs proceeds upon the idea of an express and special contract; that is, a contract to do something special, as distinct from a mere promise to pay a money debt; the object being to except this case from the operation of the act of February 25, 1862, upon all debts.

The instruction was properly refused, because there was no evidence of any such contract. There was no express contract or promise of any sort. There was nothing expressed but the acknowledgment of the receipt or deposit of certain moneys to the credit of the depositor; and no express promise to pay it at any time or In any manner.

Story, Prom. N. § 14; Grant, Banking, 2, 3.
Even if an express contract could be proved,

averred in the declaration, still, it was not a contract to deliver so much bullion, but a promise to pay so much money. The money deposited was not to be returned, but an equivalent amount in dollars and cents to be repaid. Nothing can be made out of this but a mere money debt and, therefore, the court was right in instructing the jury, according to the prayer of the defendants, that, even if they found that the coin was deposited with the defendants, as bankers, to be repaid in coin, this merely created a debt which could be discharged in legal tender notes.

On this point, see Shallenberger v. Brinton, 3 Am. Law Reg. (N. S.) 591; Shoenberger v. Watts, 1 Am. Law Reg. (N. S.) 553; Warnibold v. Schlicting, 16 Ia. 243; Wood v. Bullens, 6 Allen (Mass.) 516; Appel v. Woltman, 6 Am. Law Reg. (N. S.) 248, reported, 38 Mo. 194; Buchyger v. Schultz, 5 Am. Law Reg. (N. S.) 95, from Michigan.

The plaintiff, at the trial, relied upon evidence of the usage of the bank of the defendants, after the suspension of specie payment by the United States in January, 1862, and especially after the act of February 25, 1862, in repaying specie and currency deposits in kind, and offered evidence of a similar usage on the part of other banks, which was refused; and this refusal was the ground of the first exception.

A usage or custom is referred to, either as the law governing the dealings between parties, or in order to ascertain their presumed intention.

But in either case it can only be resorted to where the contract and the statute law are silent. No usage can exist in opposition to the statute, nor is there such a thing as an usage coincident with the statute which, in fact, consists merely of obedience to the statute.

Where the statute prescribes a rule of action, the obligation as well as the meaning of the parties is referred to and ascertained by the statute.

Wigglesworth v. Dallison, 1 Sm. Lead. Cas. 670 (Doug. 201); Renner v. Bank of Columbia, 9 Wheat. 582; Camden v. Doremus, 3 How. 515. It will be maintained that this act was within the powers of Congress conferred by article 1, § 8, sub. 18, of Constitution.

It is settled that, in the choice of means to carry into effect its powers expressly granted, Congress is not restricted to those which are absolutely essential, but may select those which are useful or conducive to the end, or calculated to effect the object; and Congress is the sole judge of the degree of necessity or expediency.

McCulloch v. Md. 4 Wheat. 316; United

States v. Fisher, 2 Cranch. 358; Craig v. Mo. 4 Pet. 410; Briscoe v. Bk. of Ky. 11 Pet. 257, and 13 How. 12.

It has been decided that treasury notes may be made a lawful tender in payment of debts to the United States.

Thorndike v. United States, 2 Mas. 1, 18. It has been decided that Congress, under the power to borrow money, may declare United States stocks and securities exempt from taxation, in order to add to their value.