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the defendant made a motion for a new trial, | feasances or wrongs, or negligences or omissions of the decision on which is reported in 22 Blatchf. duty, of the subordinate officers or agents employed in the public service. 39. The motion was denied, on the ground 2. A public officer is not responsible for the misthat the articles in question, as stockings made feasances or positive wrongs, or for the nonfeason frames, were specifically made dutiable by ances or negligences or omissions of duty, of the that name in the Acts of 1861 and 1862, and had ployed by or under him, in the discharge of his ofsubagent or servants or other persons, properly embeen dutiable eo nomine, by different enact- ficial duties. ments, since 1842; and that the general language of the Act of 1867 did not affect the specific description in the Acts of 1861 and 1862. Particular reference was made in the decision to the opinion of this court in Vietor v. Arthur, 104 U. S. 498 [26:633]. The goods in that case Argued May 1, 1888. Decided May 14, 1888. were imported after the enactment of the Re-1States for the Southern District of New

vised Statutes, on the 22d of June, 1874, and were stockings, some of them wholly of worsted and others of cotton and worsted, cotton being the material of chief value, and they were intended to be worn by men, women, and children, and were made on frames, and were also knit goods. The collector had exacted upon them a duty at the rate of 90 per cent of 50 cents a pound and 35 per cent ad valorem, as knit goods, under schedule L of section 2504 of the Revised Statutes. The importer claimed that they were dutiable as stockings made on frames, worn by men, women, or children, under schedule M of the same section. Judgment having been entered for the defendant, this court reversed it, on the ground that, as between the descriptions in the two schedules in the same section of the Revised Statutes, the goods must be considered as having been provided for under the desiguation of stockings made on frames, worn by men, women, or children, in schedule M, and as not being liable to the higher duty prescribed by schedule L, because, although schedule L was broad enough to comprehend them, yet, as schedule M covered them by a specific designation, and they had been dutiable as stockings made on frames, eo nomine, since 1842, and by four different enactments, they fell within schedule M. That decision does not apply to the present case, for here the only question is whether the stockings, so far as they have wool in them, being manufactures made in part of wool, and dutiable as such by the Act of 1867, were otherwise provided for in that Act. It is clear that they were not.

Inasmuch as the verdict directed covered the stockings which contained wool and cotton, and the judgment is a unit, and the direction of a verdict was wrong as to those goods, the judgment is reversed, and the case is remanded to the Circuit Court with a direction to grant a new trial.

[507] WILLIAM H. ROBERTSON, Late Collector of the PORT OF NEW YORK, Piff. in

Err.,

V.

EMILIE SICHEL, an Infant, by JOSEPH SICHEL, Her Guardian ad litem.

(See 8. C. Reporter's ed. 507-517.)

Liability of government for acts of agentsliability of officer for wrongs of his subordinate officers-liability of Collector.

1 The government is not responsible for the mis

3. A collector of customs is not personally rethe custom house department; in order to charge sponsible for the negligence of his subordinates in him in such case, he must have been guilty of personal neglect, misfeasance or wrong. [No. 269.]

ERROR to the Circuit Court of the United

York, to review a judgment for the plaintiff, in an action against the Collector of Customs to recover damages for the loss of the contents of a trunk, destroyed by fire after its arrival by ship. Reversed. The facts are stated in the opinion.

Mr. G. A. Jenks, Solicitor-Gen., for plaintiff in error.

Mr. Edward Jacobs, for defendant in er

ror:

A collector is liable for the illegal detention of property.

Hall v. Warren, 2 McLean, 332.

The wrongful taker of property, when called upon to surrender it to the rightful owner or pay the value, cannot defend himself from judgment by showing his inability to deliver, through death or destruction.

Caldwell v. Fenwick, 2 Dana, 333; Haile v. Hill, 13 Mo. 612; Gibbs v. Bartlett, 2 Watts & S. 34; Austin v. Jones, Gilmer (Va.), 341; Scott v. Hughes, 9 B. Mon. 104; Garrett v. Wood, 3 Kan. 231; Berthold v. Fox, 13 Minn. 501.

The unreasonable delay in removal forms another breach of duty.

Russell Mfg. Co. v. New Haven Steamboat Co. 50 N. Y. 121.

A refusal to charge a proposition which, however true it may be, is, so far as applied to the case, a mere abstraction is not error.

Priebe v. Kellogg Bridge Co. 77 N. Y. 597. Where a proposition has been substantially charged, a refusal to charge in the language of counsel is not error.

Allen v. Stout, 51 N. Y. 668; Miller v. Barber, 66 N. Y. 558.

A prayer for instructions, consisting of a number of propositions presented as a whole, may be refused if any of them should not be given.

Johnston v. Jones, 66 U. S. 1 Black, 210 (17: 117); Harvey v. Tyler, 69 U. S. 2 Wall. 328 (17:871); Lincoln v. Claflin, 74 U. S. 7 Wall. 132 (19:106); Beaver v. Taylor, 93 U. S. 46 (23: 797); Worthington v. Mason, 101 U. S. 149 (25: 848); U. S. v. Hough, 103 U. S. 71 (26:305).

Mr. Justice Blatchford delivered the opinion of the court:

This is an action at law, brought in the City [508] Court of the City of New York, by Emilie Sichel, an infant, by Joseph Sichel, her guardian ad litem, against William H. Robertson, Collector of Customs for the Port and collec tion district of New York, and removed by the defendant into the Circuit Court of the United States for the Southern District of New York.

The object of the suit was to recover dam

[509]

ages for the loss of the contents of a trunk be- that he found other dutiable articles; that he
longing to the plaintiff, who was a passenger attempted to find an appraiser to appraise and
by the steamship Egypt of the Inman line, from assess duties upon those articles, but did not
Liverpool, and arrived at New York, at the find one; that he reported to the staff officer
pier of the ship, on the 31st of January, 1883. having charge of the passengers and their bag-
She was sixteen years of age and was a first gage from that steamer, and under his advice
cabin passenger. She made a baggage declara-marked the trunk for the public store, to be ex-
tion, under oath, which stated that she had two amined by the proper examiner and have the
trunks and two bags, containing "wearing ap- duties assessed, under a section of the regula
parel in actual use and personal effects not mer- tions for the government of officers of the cus-
chandise." She declared "nothing new or du- toms under the superintendence and direction
tiable." Her baggage was examined on the of the surveyor of the Port of New York,
dock, and one trunk was detained by the cus- which was admitted in evidence, and was as
toms officers, who gave her a receipt therefor, follows: "In the absence of the entry clerks
signed by an inspector, which stated that the or appraiser, dutiable articles taken from pas-
inspector had sent the one trunk, for appraise-sengers' baggage will be sent by the inspector
ment, to the public store, under a baggage per- as soon as possible to the public store, and the
mit. She was directed by the officers to call passenger will be furnished by the inspector [510]
the next day at the public store, to receive the with the usual baggage certificate;" that, the
trunk. This trunk contained her personal ef- trunk having been thus marked for the public
fects, which cost her $400. The only thing in store, and a receipt given to the plaintiff, it was
the trunk not wholly intended for her own use put into the charge of the discharging officers
was ten pounds of chocolate, valued at about of the vessel; that the inspectors were allowed
$2.50, part of which she ate, and she intended to send goods to the public store for appraise-
to eat the balance in company with some of her ment, only through a custom house cartman;
young friends. This was her first visit to that the discharging officer who received the
America. She was a native of Germany, and plaintiff's trunk did not send it to the store-
at the time of her arrival was unfamiliar with house because there was no cartman on the pier
our language and customs. She did not know to take it away, and none came to do so, though
and could not understand the nature and effect an effort was made to procure one; that the
of the baggage declaration which she was asked trunk remained on the pier, under his custody,
to sign, and it was not explained to her. In and was totally consumed by fire on the night
the trunk, with her clothing and wearing ap- of the 31st of January, the officers who were
parel, were some paper boxes containing some there being driven away by the flames; and
brass ornamental jewelry on cards, given to that the fire occurred between 2 and 3 o'clock
her abroad, of the value in all of about one dol- A. M. of the day following that of the arrival
lar, some of which she had worn, some old lace of the steamer.
curtains, six tablecloths and twelve napkins, a
gift from her mother, the ten pounds of choco-
late, and three corsets, one of which she had
worn. On the next day, the usual order was
made, on an application signed by the plaintiff,
for an appraisement of the contents of the trunk.
The plaintiff demanded the trunk at the public
store, but did not receive it, because it had been
destroyed by fire, on the pier of the ship, on the
night of January 31, 1883. It was proved on
the trial that, on the morning after the arrival
of the ship, the deputy collector issued an or-
der to the clerk in the Collector's department at
the custom house for the appraisal of the trunk,
and that there could be no appraisal without a
permit from the Collector.

At the close of the plaintiff's case, the defendant asked the court to direct a verdict for him, on the ground that, the action being one for personal negligence, the plaintiff had not brought home to the Collector personally any connection with the trunk at the time it was destroyed, and that, if any negligence was to be imputed to the subordinate officers of the customs, such negligence could not be imputed to the Collector. The court refused to grant the motion, and the defendant excepted.

Evidence was then introduced on the part of the defendant tending to show that the inspector on the dock who examined the trunk discovered what, in the exercise of his discretion, he determined to be dutiable articles; that he reported to his superior officer that he thought the trunk contained dutiable articles and that officer told him to see what else he could find; 204

It also appeared in evidence that, under article 431 of the customs regulations, it was the duty of the Collector, on the arrival of any steamer of a regular line from a foreign port, to detail an experienced entry clerk, who, with a similar clerk to be designated by the naval officer and an assistant appraiser or examiner to be detailed by the appraiser, should, together with the inspector on board, examine all the passengers' baggage, place the dutiable value upon the same, and, if dutiable articles were found, appraise the same and assess the duty thereon. It also appeared that all those officers were on the dock on that day.

The following regulations were then put in evidence:

"The Laws and Regulations for the Government of Officers of Customs under the Superintendence of Surveyors of Ports. 1877."

"Article 104. Whenever any trunk or package brought by a passenger as baggage contains articles subject to duty and the value thereof exceeds $500, or if the quantity or variety of the dutiable articles is such that a proper examination, classification, or appraisement thereof cannot be made at the vessel, the trunk or package will be sent to the public store for appraisement."

"Article 117. In the absence of the entry clerk or appraiser, dutiable articles taken from passengers' baggage will be sent by the inspector, as soon as possible, to the appraiser's store and the passenger will be furnished by the inspector with the usual baggage certificate,' which will be in the following form:

127 U. S.

[511]

[512]

"Inspector's certificate of goods sent to public | loss may have been the result of negligence on
store under baggage permit.
the part of the Collector. It is necessary to
show that it was.

"PORT OF

18On board ship. "I have sent to public store under 'baggage permit' the following articles said to belong to "(Describe the articles.)

Inspector."

By the government's report in this case the value of the property in Miss Sichel's trunk was alleged to be $100 only, while the plaintiff did not claim the value to be over $400. Peterson, the government inspector, did not make a written report of the case to the government until about two months after the arrival of the steamer. He did this at the request of the surveyor, and it was no part of his duty to make it as requested. The same inspector Peterson had signed and issued the certificate on the baggage declaration. There was an appraiser on the pier in question some time on that day. The trunk in question was the only seizure or detention of passengers' baggage made on that dock on the day in question.

The defendant himself, being put upon the stand and duly sworn, testified that he was the Collector of the Port of New York; that he had in the neighborhood of twelve hundred subordinates under him; that, approximately, the average annual importations into the Port of New York, passed through the custom house, were of the value of $500,000,000; that he knew nothing about the trunk imported by Emilie Sichel by The Egypt on January 31, at the time of its importation; that he was not on the dock at the time; that it was no part of his duty to pay any attention to the actual arrival of the passengers' baggage, or passing it through the custom house, or ordering it to the public store, or examining it to see if there were any dutiable goods, or to have anything to do with it; that as a matter of fact he had nothing to do with it; and that the first time his attention was called to the matter of this trunk was long after the fire, some time in September, 1883. The evidence being closed, the defendant moved the court to direct a verdict in his favor upon the same grounds on which the motion was made at the close of the plaintiff's case, that is to say, that there was no evidence in the case to connect the defendant with the destruction of the trunk; that in the case of a public officer, the doctrine of law respondeat superior did not apply; and that, before there could be any recovery from the public officer it must be shown that he was personally responsible himself, and that the negligence was his own act. The court refused to grant this motion, and the defendant excepted.

The defendant then requested the court to charge as follows:

"1. That a public officer is not responsible for the negligence of his subordinates.

"2. That the defendant is liable only for the neglect of some duty devolved upon him personally and not for the neglect of duty of any other person.

"5. That the jury cannot find a verdict in favor of the plaintiff if they find that the loss of this trunk was due to the personal negligence or violation of statutes or regulations on the part of the customs officers other than the defendant personally.

"6. That the inspector who examined plaintiff's trunk, having found therein what he believed to be dutiable articles, was obliged to turn said trunk over to others of the officers of the customs for appraisement and assessment of duty, and until such appraisement and assessment of duty, and the payment of the duty as assessed, the plaintiff was not entitled to the possession of the trunk.

7. That the defendant is not responsible in this action for the withholding the plaintiff's trunk and its contents.

"S. That if the customs officials at the vessel misinterpreted their duty, and did an act which was in law a trespass or conversion, the defendant is not responsible, he not having been present and not having been a party to the wrong interpretation of duty acted on by the customs officers at the vessel.

"9. That the defendant is not responsible for the trespasses, conversion, or other faults of his subordinates committed by them even in the line of their duty, unless he was personally a party to the same.

"10. That the law, as provided in section 2652 of the Revised Statutes, made it the duty of the customs officers at the vessel by which the plaintiff's trunk was imported, to execute and carry into effect all instructions of the Secretary of the Treasury relative to the execution of the laws.

"11. That it appears by the evidence in this case that one of the instructions by the Secretary for the guidance of the officers at the vessel in which the plaintiff's trunk came was & provision that, whenever any trunk or package brought by a passenger as baggage contains articles subject to duty, the value whereof ex ceeds five hundred dollars, or, if the quantity or variety of dutiable articles is such that the proper classification and examination for appraisement thereof cannot be made, the trunk or package will be sent to the public store for appraisement.

12. That this instruction of the Secretary had and has the force of law for the facts in this case.

"13. That the instructions devolved upon the customs officials at the vessel a discretion to determine whether the quantity and variety of the dutiable articles was such that the proper classification and examination for appraisement thereof could not be made at the vessel, and, if they determined it could not be, to send the trunk and its contents to the public store for appraisement.

"14. That in the exercise of this discretion
those officers, and the Collector as their su
perior, are not responsible for any error of
"3. That unless the jury find that the loss of judgment in making the determination wheth
this trunk was the direct result of some per-er the quantity or variety of the dutiable arti
sonal carelessness or negligence on the part of cles was such, prior to sending the trunk to
the defendant there can be no recovery.
the public store.
"4. That it is not suflicient to show that the

"15. That the officers at the vessel, and the

[513]

[514]

[515]

Collector as their superior, can, if at all, only | 422; U. S. v. Kirkpatrick, 22 U. S. 9 Wheat.
be held responsible for bad faith in the exer- 720, 735 [6:199,203]; Gibbons v. U. S. 75 U. S.
cise of the discretion thus devolved upon them 8 Wall. 269 [19:453]; Whiteside v. U. S. 93 U.
by the regulation established by the Secretary, S. 247, 257 [23:882,885]; Hart v. U. S. 95 U.
under the law."
S. 316, 318 [24:479,480]; Moffat v U. S. 112
U. S. 24, 31 [28:623,625]; Schmalz v. U. S. 4
Ct. Cl. 142.

The court charged the jury that if one of
the subordinate officers of the customs, in the
course of the performance of his duty, did an
absolute wrong to the plaintiff, such as to take |
her trunk from her and keep it from her when
she wanted it and was by law entitled to it,
the defendant would be liable. The defend
ant excepted to this charge. The court gave
further instructions, which bore upon the mat-
ters set forth in the defendant's requests to
charge, but which, in the view we take of the
case, it is not important to notice. The bill of
exceptions states that the court did not com-
ply with the defendant's requests to charge
further than as appears by the charge as stated,
and that the defendant excepted to the refusal
to charge as to each request separately, so far
as the court did refuse.

The jury found a verdict for the plaintiff for $459. The court ordered that a certificate of probable cause be entered, and on the verdict, with costs added, a judgment was entered for the plaintiff for $502.96, to review which the defendant has brought a writ of error.

We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case. There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the Collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person.

The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons [516] properly employed by or under him, in the discharge of his official duties. Story, Ag. $319.

In Keenan v. Southworth, 110 Mass. 474, it
was held that a postmaster was not liable for
the loss of a letter, occasioned by the negli-
gence or wrongful conduct of his clerk. The
court said: "The law is well settled, in Eng-
land and America, that the postmaster-general,
the deputy postmasters, and their assistants
and clerks, appointed and sworn as required by
law, are public officers, each of whom is re-
sponsible for his own negligence only, and not
for that of any of the others, although selected
by him and subject to his orders." The court
cited, to sustain this view, Lane v. Cotton, 1
Ld. Raym. 646; S. C. 12 Mod. 472; Whitfield
v. LeDespencer, Cowp. 754; Dunlop v. Monroe,
11 U. S. 7 Cranch, 242 [3:329]; Schroyer v.
Lynch, 8 Watts, 453; Bishop v. Williamson, 11
Me. 495; Hutchins v. Brackett, 22 N. H. 252.

To the same purport are Bailey v. Mayor of
N. Y. 3 Hill, 531; Conwell v. Voorhees, 13
Ohio, 523, 543; Story, Bail. §§ 462, 463; 1 Bell
Com. 5th ed. 468; 2 Kent Com. 4th ed. 610,
611.

The very question here involved came before
the Circuit Court of the United States for the
Southern District of New York, in the case of
Brissac v. Lawrence, 2 Blatchf. 121, in June,
1850. The defendant was the Collector of the
Port of New York. Imported goods belong-
ing to the plaintiff had been deposited in a cus-
tom house warehouse, and were either lost or
mislaid there, or were delivered to some person
not entitled to them. At the trial it was sought
to show carelessness on the part of the defend-
ant, as the head of the custom house depart-
ment, in the manner in which the books of the
This principle is well established by author- warehouse were kept, and also that the book-
ity. It is not affected by the fact that a stat-keeper was a person of intemperate habits and
utory action is given to an importer, to recover unfit for the situation. On the other hand, it
back, in certain cases, an excess of duties paid was proved that the books were kept in con-
under protest; nor by the fact that a superior formity with the mode usually adopted at the
officer may be held liable for unlawful fees ex-time for keeping books of that kind; that the
acted by his subordinate, where lawful fees
are prescribed by statute, and where such fees
are given by law to the superior, or for the act
of a deputy performed in the ordinary line of
his official duty as prescribed by law. The
government itself is not responsible for the
misfeasances, or wrongs, or negligences, or
omissions of duty of the subordinate officers or
agents employed in the public service; for it
does not undertake to guarantee to any person
the fidelity of any of the officers or agents
whom it employs; since that would involve it,
in all its operations, in endless embarrassments,
and difficulties, and losses, which would be
subversive of the public interests, Story, Ag.
§319, Seymour v. Van Slyck, 8 Wend. 403,

intemperate book-keeper had been discharged;
and that, during a period of nineteen months,
out of two hundred thousand packages of goods
which had been received at the warehouse in [517]
question, only two packages had been lost.
Mr. Justice Nelson, in charging the jury, sub-
mitted to them the question whether the col-
lector had been guilty of personal negligence
in respect to the goods. In the course of the
charge, the court said: "The collector is not
personally responsible for the negligence of his
subordinates in the custom house department,
and, therefore, he is not responsible for the
negligence of persons employed in the ware-
house department.
In order to charge
the defendant with the loss, it is necessary that

**

* * *

In

Mr. Justice Field delivered the opinion of [410] the court:

Ryan, since deceased, entered into a contract
On the 23d day of July, 1872, Robert H.
with the Board of Public Works of the District
of Columbia to do certain work for the im

the plaintiffs should satisfy you, by affirmative | Robert A. Howard, Asst. Atty-Gen., for
and reasonable testimony, that the collector appellee
was personally guilty of negligence in the dis-
charge of his duty, either by misdeed or by
omission. * * * This is a suit against the col-
lector, who did not have charge of the goods;
and, in order to render him liable, you must
find him to have been guilty of personal
neglect, misfeasance, or wrong.
view of the fact that the Collector of New provement of New Jersey Avenue in the City
York has charge of all the business from which of Washington, from B Street south to the
Potomac River. The different kinds of work
two thirds of the entire revenue of the United
States is collected, and has thousands of sub-required were stated, and the prices for each
ordinates, and upon the evidence that only one specified, among which were "grading 30 cents
package out of every one hundred thousand per cubic yard," and "excavations and refilling,
which passed through the hands of those sub-40 cents per cubic yard, to be measured in ex-
ordinates has been lost, it is strange that this
case has been so urgently pressed, with the
idea that upon any principle of equity, much
less of law, there could be any liability on the
part of the collector." The jury found a ver-
dict for the defendant. See, also, U. S. V.
Brodhead, 3 Law Rep. 95; Whart. Ag. §550.
The judgment of the Circuit Court is reversed,
and the case is remanded to that court with a
direction to grant a new trial.

cavating only." It is conceded that Ryan per-
formed the work pursuant to the contract, and
has been paid the amount agreed upon. The
present claim is for extra work on the avenue
which it is contended there is no provision in
"in grading or excavating stone or rock," for
the contract. The board had entered in its
journal before the contract was made the fol-
following price was established for rock excava
lowing: "Chief Engineer was notified that the
tion, viz.: in ditches for sewers, etc., $1.50 per
cubic yard; cutting down streets and the like,

[409] JOB BARNARD, Admr. of ROBERT H. $1.00 per cubic yard. Auditor and contract

RYAN, Deceased, Appt.,

v.

DISTRICT OF COLUMBIA.

(See S. C. Reporter's ed. 409-411.)

Compensation for extra work-written contract.

1. Where, in a contract to do certain work in im-
proving a street in Washington, the prices for pav-
ing and excavation were fixed at so much a yard,
the contractor is not authorized to charge for extra
work for stone or rock found in the excavation,
the contract not being limited to work done in
earth free from stone or rock.
2. All contracts of this character are required by

law to be in writing; and the law forbids the allow-
ance of any extra compensation for work done un-
der a contract.

3. The board of public works could not, by a mere
entry in its journal, make a new contract or alter
one previously made.

A

[No. 272.]

Argued May 2, 1888. Decided May 14, 1888.
PPEAL from a judgment of the Court of
Claims, in favor of defendant, in an action
to recover for extra work in excavating stone
or rock, under a contract for the improvement
of a street in the City of Washington. Affirmed.
Reported below in 20 Ct. Cl. 257..
The facts appear in the opinion.
Mr. I. H. Ford, for appellant:
Money voluntarily paid, with a full know-
ledge of all the facts and circumstances under
which it was demanded, cannot be recovered
back. To recover money so paid, the party
seeking to recover it must prove fraud, duress,
or mistake of fact.

|clerk notified;" and Ryan contended that he
was therefore entitled for all rock excavations
to one dollar a yard instead of the price speci-
fied in the contract for grading and excavating,
the difference being $4,060.

To this contention there are two answers.
In the first place, the "grading" and "excava-
tion" specified in the contract are not limited to
work done in sand or gravel or earth free from
stone or rock. It might reasonably be expected
that more or less stone or rock would be found
in the progress of the work, and the price was
evidently fixed upon its supposed average char-

acter.

In the second place, the Act of Congress of
February 21, 1871, "to provide a government
for the District of Columbia," in force at the
time, required that all contracts by the board
should be in writing, be signed by the parties
making the same, and a copy thereof filed in
it forbade the allowance of any extra compen-
the office of the secretary of the District; and
sation for work done under a contract. 16
Stat. at L. 423, chap. 62, SS 15, 37.

part of the contract with the claimant, nor
The entry in the journal of the board was no
could it in any respect control the construction
or limit the effect of such contract. The board
tract or alter the one previously made, so as to
could not in that way either make a new con-
bind the District. Barnes v. Dist. of Columbia,
22 Ct. Cl. 366.

Judgment affirmed.

JOSHUA HENDY, Appt.,

D.

Lamborn v. Dickinson County, 97 U. S. 185
(24:928); Meech v. Buffalo, 29 N. Y. 198, 212,
213; Elliott v. Swartwout, 35 U. S. 10 Pet. 153, GOLDEN STATE AND MINERS' IRON

WORKS ET AL.

(See S. C. Reporter's ed. 370-376.)

154 (9: 379); Mutual Life Ins. Co. v. Wager, 27
Barb. 354; 2 Greenl. Ev. § 123; Dill. Mun.
Corp. 477; 4 Wait, Act. & Def. 483, 487;
Boston & S. Glass Co. v. Boston, 4 Met. 181, 188; Letters patent, infringement of-defense-com
Mays v. Cincinnati, 1 Ohio St. 268; Awalt v.
Eutaw Building A880. 34 Md. 435.

Messrs. A. H. Garland, Atty-Gen., and

bination-claim.

In a suit for the infringement of letters patent
No. 140, 250, granted to James D. Cusenbary and

[411]

[370]

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