ed, or to examine the cases cited to sustain it. | Carpenter v. Ins. Co., 4 Sandf. Ch., 408; Ins. We are of the opinion that the exceptions to Co. v. Patterson, 28 Ind., 17; Bliss, sec. 172; the charge of the judge, upon the theory that City of Davenport v. Ins. Co., 17 Iowa, 276: the representations by Dr. Day were made on Lefavour v. Ins. Co., 2 Big. Ins., 158: S. C., the 14th day of October, or that concealment 1 Phila., 558. 387] *was then practiced by him, on the ground that the previous representations, necessarily and as a matter of law, were continuous, and that the contract was consummated on that day, cannot be sustained. It was a question proper, under all the circumstances, for the consideration of the jury. If they had found for the plaintiff, we are of the opinion that the verdict would not have been vacated as being without or against the evidence. In many English companies a formal acceptance of the proposal for insurance is issued. In some companies this acceptance is unconditional, so that the premium be paid within the month, the letter of acceptance running to the effect that the proposal has been accepted, and that a receipt is ready at the office for the premium, upon the payment of which the assurance will commence; but that, if the same be not paid within thirty days, a re-appearance and fresh certificate will be required. In other companies the acceptance is qualified by the condition not only that the insurance shall not commence till the payment of the premium, but that no material change shall have occurred prior thereto. Bunyon, 58, cited in Bliss, sec. 99. The practice is not uniform, and there is nothing remarkable in allowing a certificate of health to stand good for thirty days, no re-appearance or examination for that interval being required. Among the other cases relating to this subject, the following may be referred to as showing the effect of the contract by relation, and that the consummation of the contract does not necessarily depend upon the delivery of the policy. In Lightbody v. Ins. Co., 23 Wend., 18, it was held that a policy bearing date on the day the premium is paid, takes effect by relation from that day, although the policy be not delivered for several days afterwards. In this case, the buildings were burned on the day after the premium was paid and before the policy was delivered. In Perkins v. Ins. Co., 8 Cow., 645, the rule was applied in a case where the agent was authorized to make insurances, "provided the office shall recognize the rate of premium, and be otherwise satisfied with the risk." It was 388] *held that the company was bound to issue a policy where the insurance was a proper one and the premium was paid or tendered, although before the premium was received at the home office the property was consumed by fire. In Chase v. Ins. Co., 22 Barb., 527, the agent forwarded a proposition for insurance, which was altered by the company, and the alteration communicated to and accepted by the applicant, and the premium paid to the agent. Held, that the company was bound to issue its policy, and was liable for the loss. In Ins. Co. v. Webster, 6 Wall., 129, 18 L. ed., 888, the party having received his policy, it was held that he was not affected by afterwards signing a memorandum that the insurance was to "take effect when approved by E. D. P., general agent." See, also, Cooper v. Ins. Co., 3 Big. Ins., 656; Cooper v. Ins. Co., 7 Nev., 116; Second objection. At the close of his charge, the judge instructed the jury as follows: "That the plaintiff is not responsible for or in any way affected by any of the statements in Dr. White's affidavit, unless the jury find that before and at the time of filing it with the agent of the Company she had actual knowledge of its contents, and adopted and used them as her own declarations. That affidavit is her declaration or no, as she knew and was advised of it and procured and approved it." To which instruction the counsel for the Insurance Company then and there excepted. In establishing her case at the trial, the plaintiff was bound to prove that notice of the death of her husband, Dr. Day, had been given to the the amount claimed had been made. For that Company, and that a demand of payment of purpose only she offered in evidence the proofs of loss which had been furnished to the Company, except the affidavit of Dr. White, forming a part of the same, which she did not offer in evidence. Those proofs contained the sworn statement of Mrs. Day herself, the sworn statethe clergyman and undertaker, and proof [389 Isaac White, certificates of of identity by J. F. Patterson. ment of Dr. These affidavits were all on one paper, and the court required that the proofs of loss should be put in as an entirety; that is, that all the papers containing the preliminary proofs should be put in evidence; and the same were therethe affidavit of Dr. White. In Dr. White's afupon put in evidence by the plaintiff, including fidavit thus introduced occurred the following questions and answers: ""How long have you known the deceased?' 'I have known Dr. R. H. B. Day seventeen years.' 'How long was deceased sick?' 'About five months.' 'Date of your first visit?' 'November 28, 1870.' 'Date of your last?' 'January 22, 1871.' 'Of what disease did he die?' 'Pulmonary consumption." " It appeared further that Dr. White was not a resident of Washington, but left that city immediately after making the affidavit mentioned, on the 28th of January, 1871. Mrs. Day testified that Dr. White had not seen her husband at any time between September, 1869, and the latter part of November, 1870. The struggle as to Dr. White's affidavit and the ruling upon it are quite immaterial. He stated in answer to one of the questions that Dr. Day had been ill about five months, and, as he died on the 22d of January, 1871, this would carry his illness back to the 22d of August, 1870, of course, including all the month of October of that year. The Insurance Company apparently sought the benefit of this evidence on the contest in regard to Day's health. It is, however, manifest that White's statement was not one of personal knowledge, but was upon rumor, or made without sufficient reflection. This is evident from the testimony of Mrs. Day, which is entirely unimpeached and uncontradicted, that Dr. White did not see her husband during all of the year 1870 until the latter part of November. Upon this subject she could not well be in error. It was equally evident, from the statement of White himself, that his first visit to Day was on the 28th of November, 1870. Day's bodily health on the first day of October, 1870, was satisfactory to the Company, and 390] the attempt was to show an *unfavorable alteration between that date and the 14th of the same month. But White had not seen him during those fourteen days, nor for months before, nor for more than six weeks afterwards. Whether the presentation of the affidavit of White, by Mrs. Day, made its contents evidence; whether she knew its contents or not; whether she did or did not adopt or procure it, was not of the slightest consequence. The paper contained nothing that was legal evidence upon the point in issue. and a verdict founded upon it could not have been sustained. The disposition of the subject by the Judge was one that could not possibly work legal injury to the Insurance Company. There was, therefore, no error. Starbird v. Barrons, 43 N. Y., 200; Pepin v. Lachenmeyer, 45 N. Y., 27; People v. Brandreth, 36 N. Y., 191; Porter v. Ruckman, 38 N. Y., 210; Corning v. Iron and Nail Factory, 44 N. Y., 577. The effect of facts set forth in preliminary proof as admissions is discussed in Ins. Co. v. Newton, 22 Wall., 32, 22 L. ed., 793. Where an agent of the insurance company stated that the proofs were sufficient to show the death of the insured, but that they showed that he committed suicide, it was held that the whole admission must be taken together. Where the party or her agent stated in the preliminary proofs that the deceased had committed suicide, furnishing the verdict of a coroner's jury to that effect, and where the narration of the manner of the death of the deceased was so interwoven with the death of the deceased that the two things were inseparable, it was held that the whole was competent to go before the jury. We see no occasion to question the positions of that case. Upon the whole case, we are all of the opinion that the judgment must be affirmed. 407] UNITED STATES, Appt., V. doned property cannot be assigned so as to give the assignee a standing in that court. [No. 790.] Submitted Nov. 20, 1877. Decided Dec. 10, 1877. Appeal from the Court of Claims. The findings of the Court of Claims were as follows: 1. In March, 1865, one John H. Ryan, of Charleston, S. C., was the owner of 103 bales of upland cotton and five bales of sea-island cotton, which were, during that month, seized, at said Charleston, by military officers of the United States, turned over to the agents of the Treasury Department, transported to New York and there sold and the net proceeds thereof covered into the United States Treasury, amounting to $130.33 per bale for the upland cotton, and $231.61 per bale for the sea-island cotton. 2. Sometime in October or November, 1866, said Ryan transferred the legal title to his claim against the United States, for the proceeds of said cotton so covered into the Treasury, to Thomas H. Gillis, of New York, and the name of said Gillis. assented to the bringing this action thereon in 3. After the institution of this action, said Thomas H. died, and Catharine I. Gillis was duly appointed administratrix of his estate by the Surrogate Court of the County and State of New York, July 16, 1868, and has since been admitted by the court to prosecute this suit as such administratrix. 4. The transfer of the claim, as set forth in the second finding, was made through one Van Ness, at New York, under a power of attorney from said Ryan, and a contract, the full terms of which have not been proved. But it appears that said Ryan (since deceased) assented to and affirmed said transfer. Subsequently a controversy arose between the present claimant and the administrator of said Ryan, as to an equitable interest set up by said administrator, in some portion of the money which might be recovered. Since this action was instituted, a compromise has been made between said claimant and said Ryan's administrator, by which it is agreed that a certain part, but how much it does not appear, of the amount recovered shall be paid over to said administrator by the claimant's attorney of record. Conclusion of law. The claimant is entitled to recover $13,423.99 as the proceeds of 103 bales of upland cotton, and $1,158.05 as the CATHARINE I. GILLIS, Admrx. of Thomas proceeds of five bales of sea-island cotton; in H. Gillis, Deceased. (See S. C., Reporter's ed., 407-418.) Claims against United States-assignment ofAct of 1853-assignee cannot recover. 1. By the Act of Congress of Feb. 26, 1853, all transfers or assignments, partial or entire, absolute or conditional, of claims against the United States, are null and void. 2. The Act creating the Court of Claims did not work a repeal of any provisions of the Act of 1853, nor make claims assignable that were incapable of assignment before its enactment. 3. The Act of 1853 is of universal application, and covers all claims against the United States in every tribunal in which they may be asserted. 4. Claims against the United States cannot be assigned so as to enable the assignee to bring suit in his own name in the Court of Claims. 5. Claims for the proceeds of captured and aban all, the sum of $14.582.04. From the judgment entered in accordance with this conclusion of law, the United States appealed. Mr. Edwin B. Smith, Asst. Atty-Gen., for appellant. Messrs. Halbert E. Paine and Benjamin F. Grafton, for appellee. Mr. Justice Strong delivered the opinion of the court: The plaintiff seeks to recover in this action the proceeds of the sale of 108 bales of cotton, which, in March, 1865, were the property of John H. Ryan, of Charleston, South Carolina. During that month the cotton was there taken by the military officers of the United States, as F directed by the Captured and Abandoned Prop- | against the Government, obtained by him through erty Act, 12 Stat. at L., 820, transported to New an assignment, the Court of Claims is without York and sold, and the net proceeds of the sale power to adjudicate upon merely equitable have been covered into the Treasury. The plain- rights. Bonner v. U. S., 9 Wall., 156, 19 L. ed., tiff, as administratrix of Thomas H. Gillis, now 666. asserts a right to recover the proceeds by virtue of an alleged assignment of the claim made by Ryan, the former owner of the cotton, to her intestate. It is obvious that, if no such assignment was made, or if, when made, it was inoperative to transmit the legal right to the claim, the suit cannot be maintained in the name of the plaintiff. Then there is no privity between her and the United States, and she is not the "owner," who alone is permitted to sue in the Court of Claims. That court found as facts that, some time in October or November, 1866, Ryan transferred the legal title to his claim against the United States for the proceeds of the cotton to the plaintiff's intestate, and assented to the bringing this action thereon in the name of Gillis. The transfer was made through one Van Ness, under a power of attorney from Ryan, and a contract, the full terms of which have not been proved, though the transfer was subsequently assented to and confirmed by Ryan. Subsequently a controversy arose between the present claimant and the administrator of Ryan, who had deceased, respecting an equitable interest claimed by said administrator in some portion of the money which might be recovered, and since the present action was brought a compromise has been made by which it is agreed that a part of the amount recovered shall be paid to the said administrator by the claimant's attorneys of record. Such, in substance, are the findings, so far as they 412] relate to the transfer of the claim by Ryan to the claimant's intestate. What the Court of Claims intended by finding that the legal title to the claim for the proceeds of the cotton was transferred to Gillis is not clear. And how that could be found, when the alleged transfer was under a power of attorney and contract, the full terms of which, the court finds, had not been fully proved, it is equally hard to understand. It seems probable all that the finding means is, that Ryan's power of attorney and contract sought to empower Gillis to bring suit in the latter's name for the recovery from the United States of the net proceeds of sale of the cotton then in the Treasury, and to retain the whole or a part of what might be recovered. However this may be, a transfer of the claim, sufficient to vest in the transferee the legal ownership thereof and give him a standing in the Court of Claims, was impossible, unless aided by some statute. At best, the claim, before its attempted transfer, was a mere right in action and a demand for an unliquidated sum of money. This is true whether the avails of the cotton sold are to be regarded as money had and received for the use of Ryan, or as held in trust for him, or promised to him by the provisions of the Captured and Abandoned Property Act. But choses in action, which are not commercial instruments, though assignable in equity in some cases, are not generally assignable at common law. And certainly the holder of a mere equitable right can have no standing as a plaintiff in the Court of Claims. Apart from the fact that there is no privity between the United States and an equitable holder of a claim If, therefore, Ryan's assignment to Gillis operated as a transfer of the legal ownership of his claim against the United States, so as to enable the assignee to sue in his own right in the Court of Claims, it must be because there is some statute that has changed the rule of the common law, and given to an assignment the effect which prior to the statute, it did not have. In U. S. v. Robeson, 9 Pet., 319, decided in 1835, it was said by this court: "There is no law of Congress which authorizes the assignment of claims against the United States, and [413 it is presumed, if such an assignment is sanctioned by the Treasury Department, it is only viewed as an authority to receive the money, and not as vesting in the assignee a legal right. But whatever may be the usage of the Treasury Department on this subject, it is clear that such an assignment, as between individuals, on common law principles, cannot be regarded as transferring to the assignee a right to bring an action at law on the account in his own name, or to plead it by way of set-off to an action brought against him, either by an individual or the Government." No Act of Congress since 1835 has given negotiability to claims against the Government, or given new effect to attempted transfers. On the contrary, an Act, passed February 26, 1853, entitled "An Act to Prevent Frauds upon the Treasury of the United States," 10 Stat. at L., 170, sec. 1, enacted "That all transfers and assignments" thereafter "made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses, after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof." The 7th section enacts that "The provisions of this Act," as also those of the prior Act of July 29, 1846, 9 Stat. at L., 41, entitled "An Act in Relation to the Payment of Claims," "shall apply and extend to all claims against the United States, whether allowed by special Acts of Congress or arising under general laws or treaties, or in any other manner whatever." No language could be broader or more emphatic than these enactments. The words embrace every claim against the United States, however arising, of whatever nature it may be, and wherever and whenever presented. So far are they from giving new potency to assignments and transfers of rights in action, so far from changing the common law rule that such rights are not assignable, the statute strikes down and denies any effect to powers of attor ney, orders, transfers and assignments which before were good in equity, and which [414 a debtor was bound to regard when brought to his notice. It has been argued on behalf of the claimant in this case that this Act, the Act of 1853, is Claims. But the latter is not an enabling Act. It gives to the court jurisdiction of all claims of a specified description, and only incidentally speaks of assignments. It requires the petition to set out all assignments of the claim, or any part thereof. It requires the record to show the allegiance of the claimant, and the original and every prior owner thereof, where the claim has been assigned. It must be admitted the Act contemplates the possibility of an effective assignment of some claims. What those are, it is not necessary now to determine. Even the Act of 1853 excepted from its sweeping provisions certain claims, which were liquidated, and for which warrants are drawn. It is enough, however, that a later statute, not declaratory in its character, cannot be relied upon for the purpose of giving a construction to a former Act plain in its terms. Ingalls v. Cole, 47 Me., 530. That the Act creating the Court of Claims did not work a repeal of any provisions of the Act of 1853, nor itself make claims assignable that were incapable of assignment before its enactment, is beyond reasonable doubt. It certainly contains *no words expressly re- [416 pealing any former statute, either in whole or in part. And there is no necessary implication of intentional repeal. Implied repeals are not favored. 2 Dwarris, Stat., 638, 673. The rule is, that an ancient statute will be impliedly repealed by a later one only when the later is couched in negative terms, or when the matter is so clearly repugnant that it necessarily implies a negative. Where both acts are affirmative and the substance such that both may stand together, both are held to be in force. Foster's Case, 11 Co., 57. Now, the Act of 1855 does not declare that any claim against the United States shall be assignable. At most, it suggests that claims which are assignable may be sued in the Court of Claims in the name of the assignee, without undertaking to declare what claims may be assigned. That there may be such claims is clearly stated in the Act of 1853, and there are devolutions of title by force of law, without any act of parties, or involuntary assignments, compelled by law, which may have been in view. There is, therefore, no necessary inconsistency between the two Acts. Besides, they relate to different subjects, and it may be doubted whether a statute relating to one subject can be construed to repeal by implication a prior statute relating entirely to another subject. applicable only to claims asserted before the 10 Stat. at L., 612, establishing the Court of Treasury Department. This is inferred from the title of the Act, and from the fact that at the time when it was passed there was no Court of Claims in existence, and claims were settled in the Treasury Department, without opportunity to cross-examine witnesses. The frauds made possible by this mode of settlement, it is said, Congress had solely in view. But it is an unwarrantable assumption to assert that Congress had in mind only claims presented to the Treasury Department. When the Act was passed, many claims were presented to Congress, and a vast number were set up by way of defalcation, in suits brought by the Government, where there was a full opportunity to cross-examine the witnesses called in their support. That Congress had all such claims in view, and intended to prevent their assignment, and debar any assignee from setting them up, is, we think, altogether probable. If it be said the danger the Act sought to provide a guard against,' was that fraudulent assignments of just claims might be imposed upon the accounting officers, so that the Government, after one payment to a pretended assignee, might find itself confronted by the real creditor and be called upon to pay again, the answer is that the same danger would attend the payment or allowance to an assignee, after a trial in court, or after a private Act passed by Congress. We discover nothing in reason, nothing in the mischief the Act was plainly intended to remedy, and nothing in the language employed tending to warrant the admission of any exceptions from the comprehensive provisions made; nothing that can justify our holding that, when Congress said all transfers or assignments, partial or entire, absolute or conditional, of claims against the United States shall be null and void, they meant they should be in operation only when presented to the accounting officers of the Treasury, but effective when presented everywhere else. Such was not the construction given to the Act by the Supreme Court of Minnesota in the case of Becker v. Sweetzer, 15 Minn., 427, where the 415] validity of an assignment of such a claim came in question. And we are not informed that any court held such to be the meaning of the Act, until the Court of Claims, in 1872, adopted it. Lawrence's Case and Cavender's Case, 8 Ct. Cl., 252 and 281. Even in that court its earlier decisions were different. In Sine's Case, 1 Ct. Cl., 12, in Cooper v. U. S., 1 Ct. Cl., 87, and in the Cote Case, 3 Ct. Cl., 6471, it was decided that all transfers and assignments of claims against the United States were made void by the statute, not only when the assignees set up the claims in the Treasury Department, but also when they attempted to sue in the Court of Claims, and very convincing reasons were given for the decision. It was said with great force, "The Act operates directly on the claims themselves, and not as limitations on or definitions of the powers of those who are to adjust them or adjudicate upon them." And it might have been added, the Act makes no reference to the accounting officers. The departure from this ruling made in the two cases reported in the 8th volume of Court of Claims Reports seems to have been made with a view to reconcile, if possible, the enactment with some expressions made in the subsequent Act of 1855, We think, therefore, the Act of 1853, is of universal application, and covers all claims against the United States in every tribunal in which they may be asserted. And such, we think, was the understanding of Congress when the Revised Statutes were enacted. In the revision, the Act of 1853 was included and reenacted. Sec. 3477. In 1873 and 1874, therefore, it was not thought that the Act establishing the Court of Claims had repealed any of the provisions of the Act of 1853; for, if it had been, the repealed parts would not have been included in the revision. The Revised Statutes were passed June 22, 1874. The decisions of the Court of Claims, that the Act of 1853 did apply to claims made in that court, had been made years before, and reported, and they may be presumed to have been within the knowledge of Congress. The later decisions in Lawrence's Case and Cavender's Case were not reported until 1874, and were probably not known, or not as well known. By re-enacting the Statute of 417] 1853, without change, it is a reasonable presumption Congress intended what it was known the court had adopted as its true construction. If we are right in the opinion we have expressed, that claims against the United States cannot be assigned so as to enable the assignee to bring suit in his own name in the Court of Claims, it is enough for the present case. But there is another reason why claims for the proceeds of captured and abandoned property cannot be assigned so as to give the assignee a standing in that court. It is found in the Act giving the court jurisdiction of such claims. Not every person is permitted to sue for such proceeds. The Act declares that "Any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of the court of his ownership of said property," etc., receive the residue of such proceeds. It is thus plain that only he who can claim as an owner of the property captured or abandoned, and who can prove such ownership, is permitted to sue and recover. The assignee of a claim for the proceeds is not such an owner of the property captured. That the ownership claimed and required to be proved is that which existed at the time of the capture. is quite plain. Carroll v. U. S., 13 Wall., 151, 20 L. ed., 565. The owner of that into which the property has been converted is not necessarily the one who was the owner of the property itself. It is thus evident that Congress did not intend to give any assignee of the proceeds a right to sue for them. And there were very substantial reasons for withholding such a privilege. 1. Negligence is the failure to do what a reason- 2. Plaintiff held not entitled to recover for an Argued Nov. 27, 1877. Decided Dec. 10. 1877. The case is stated by the court. The Upon reason and principle, the question of negligence on the part of plaintiff should have been excluded from the jury in this case. question of negligence was one of law for the court, and not one of fact for the jury.. Filer v. R. R. Co., 49 N. Y., 50; Phillips v. R. R. Co., 49 N. Y., 177; Morrison v. Ry. Co., 56 N. Y., 302; Hickey v. R. R. Co., 14 Allen, 429. Messrs. Edward C. Carrington, Campbell Carrington and Irving Williamson, for defendant in error: "When both parties are in fault, the plaintiff may recover, as when it appears that his negligence is slight and that of the defendant gross. And the rule holds, even when the negligence of the plaintiff contributed to the injury. If defendant has been guilty of a higher degree of negligence, the negligence on the plaintiff's part does not absolve the defendant." R. R. Co. v. Gretzner, 46 Ill., 74; R. R. Co. v. Sweeney, 52 Ill., 325; R. R. Co. v. Sullivan, 63 Ill., 293; R. R. Co. v. Harris, 54 Ill., 528; R. R. Co. v. Horst, 93 U. S., 291, 23 L. ed., 898. The injured party having assumed his position upon the engine by command of the ComThe judgment of the Court of Claims is re-pany, and no evidence being offered or pretense versed and the record is remitted, with instructions to dismiss the claimant's petition. Mr. Justice Bradley, dissenting: I dissent from so much of the opinion in this case as holds that an assignment of a claim against the United States could not transfer the legal title thereto without the aid of some statute. I know of nothing in the Constitution or laws of the United States which adopts the com418] mon law rule on this subject. *There is no such rule in the civil law, nor in the laws of many of the States. So far as the opinion places the judgment upon the Statute of 1853. which prohibits the assignment of claims against the United States, I concur in it. I am authorized to say that Mr. Justice Field concurs with me in this view. THE BALTIMORE AND POTOMAC RAIL V. WILLIAM H. JONES. (See S. C., Reporter's ed., 439-443.) made that he was guilty of any carelessness or Frandsen v. R. Co., 36 Ia., 372; McGowan Whether the plaintiff was guilty of contrib- Quimby v. R. R. Co., 23 Vt., 387; Pfau v. Mr. Justice Swayne delivered the opinion of the court: The defendant in error was the plaintiff in the court below. Upon the trial there, he gave evidence to the following effect: *For several months prior to the 12th [440 of November, 1872, he was in the service of the Company as a day laborer. He was one of a party of men employed in constructing and keeping in repair the roadway of the defendant. It was usual for the defendant to convey them to and from their place of work. Sometimes a Negligence, what is—injury, when riding on lo- car was used for this purpose; at others, only a locomotive and tender were provided. It was comotive. |