there is an implied obligation on every partner to exercise due diligence and skill, and to devote his services and labors for the promotion of the common benefit of the concern, it follows that he must do it without any rewards or compensation, unless there be an express stipulation for compensation." Story, Part., secs. 182, 331; Caldwell v. Leiber, 7 Paige, 483. So it is held that where partnerships are equal, as was true in the present case, and there is no stipulation in the partnership agreement for compensation to a suviving partner for settling up the partnership business, he is entitled to no compensation. Brown v. McFarland, 41 Pa., 129; Beatty v. Wray, 19 Pa., 516; Johnson v. Hartshorne, 52 N. Y., 173. This is the rule in regard to what are commonly called commercial partnerships, and the authorities cited refer to those. There may possibly be some reason for apply. ing a different rule to cases of winding up partnerships between lawyers and other professional men, where the profits of the firm are the result solely of professional skill and labor. No adjudicated cases, however, with which we are acquainted, recognize any such distinction. And in the present case, as we have said, the parties made arrangements for the work and results of work after the death of any of their number. The agreement of Aug. 13, 1869, provided that in case of the death of any partner, one third of the fees in cases nearly finished, and one quarter of the fees in other partnership cases, should belong to the representatives of the decedent. Of course, it was contemplated that the surviving partners should finish the work, and that no allowance should be made to them beyond the share of the fees specified in the agreement. Such or words to that effect, and said that he had de- The most important objection to the decree which has been urged by the appellant is that it adjudged to the complainant one third of the fee collected by the defendants in the case of Gazaway B. Lamar against The United States, including the claim of D. A. Martin. That If, then, by abandoning the case and denounccase was in charge of the firm before the agreeing it as fraudulent, he lost all the right which ment of March 18, 1869, was made, and was he had against Lamar, how can he claim from commenced in 1868. It was, therefore, one of his copartners any of the compensation they obthe cases within the purview of the agreement tained for conducting the case after his abandonof Aug. 13, 1869. Mr. Hughes' name appeared ment to final success? His action was a breach on the record as attorney and counsel with the of his duty to those partners, as well as of his appellants for the claimant. But on the 9th of obligation to Lamar. By the agreement of coJanuary, 1873, he came into court and asked partnership he had undertaken to share in the that his name be erased as such attorney, and that labor, and to promote the common interests of he have leave to withdraw his appearance and the firm, and that was the foundation of his sever his connection with the cause. His mo right to share in its earnings. It may be that tion was allowed, and his appearance was then mere neglect of his duty would not have exwithdrawn. The appellants, however, went on tinguished that right, but a repudiation of his with the case. Briefs were filed for the claim- obligations, refusing to act as a partner, or to ant on the 21st of March and the 22d of April, perform the functions of a partner, is quite a 1873, the case was argued on the 20th of May, different thing. It may well be considered as and on the 2d of June next following the court a repudiation of the partnership. It was said entered a judgment for the claimant. An ap-in Wilson v. Johnstone, 16 Eq. Cas. Abr., 606: peal was then taken to this court, which was subsequently dismissed. After the withdrawal of his appearance and the severance of his connection with the cause, Mr. Hughes took no part in prosecuting the claim, neither in the Court of Claims nor in the Supreme Court, and he paid no attention to it. He quarreled with Lamar, and about the time he withdrew from the cause he denounced the claim privately to one of the Judges of the Court of Claims as altogether without merit and a fraudulent case, "He who acts so as to treat the articles as a nullity as it regards his own obligations, cannot complain if they are so treated for all purposes. It may, therefore, very justly be held that by his action Mr. Hughes became a stranger to the case, and repudiated any relation he had previously held to it as a partner in the firm. The partnership ceased as respects that claim. The other partners who continued to attend to the case could charge the client nothing for his services, for as the contract was contingent on suc cess, nothing was due to any partner until success was attained. They certainly could claim nothing for services rendered by him after he severed his connection with the case, for he rendered none; and if he had any just claim on a quantum meruit for services rendered before, it was against Lamar, and not against his copartners. We think, therefore, the decree of the court below was erroneous, in so far as it allowed to the complainant any part of the fee collected from Lamar or from Martin, who owned a part of what was recovered in the Lamar suit. We discover no other fault in the decree, but for this the case must be sent back for correction. The decree of the Supreme Court of the District is reversed and the record is remitted, with instructions to enter another decree in conformity with this opinion. UNITED STATES, Appt., v. will of John C. Jenkins, deceased, who died in 1855, leaving four minor children, surviving him, and possessed of a plantation in the State of Mississippi, on the Mississippi River, above Vicksburg. By directions in the will, the plantation was to be cultivated by the representatives of the estate for the benefit of the testator's children. On the 18th of February, 1863, there was on this plantation, belonging to the estate and raised thereon according to the provisions of the will, a quantity of cotton, one hundred and sixtyeight bales of which were on that day seized by the naval forces of the United States, and taken on board of a government steamer. The cotton was then carried to Johnson's Landing, on the river, and thence to Milliken's Bend; where, with other cotton, making in all two hundred and fifty-eight bales, it was shipped on board of the transport Rowena, by order of Admiral Porter, who was in command of the naval forces on the Mississippi. In March following, the admiral reported the capture of this cotton to the Secretary of JOSIAH WINCHESTER, Exr. of JOHN C. the Navy, and was informed, in reply, that all JENKINS, Deceased. (See S. C., 9 Otto, 372-377.) property captured as "prize property" must be sent to a prize court for adjudication, and be disposed of as the court might decree; and that the disposition of captured "abandoned prop Admiralty jurisdiction-confiscation-seizure-erty" was provided for by an Act of Congress naval forces-prize money. 1. The admiralty jurisdiction of the District Court extends to seizures on navigable waters, not to seiz ures on land. 2. By the Abandoned and Captured Property Act, the provisions for confiscating property, in the Confiscation Act of 1862, are not repealed. 3. No previous seizure of the property, under an order of the Executive, was essential to give jurisdiction to the court to adjudge its forfeiture and decree its condemnation under the Confiscation Act. 4. Where the seizure was made by the naval forces, a decree by a court, which thus never had the property rightfully before it for condemnation, has no validity. 5. Where half the proceeds of cotton thus seized was distributed to the naval captors as prize money, the claimant is entitled to judgment for such amount illegally distributed. [No. 1098.] Submitted Apr. 17, 1879. Decided May 5, 1879. PPEAL from the Court of Claims. AP The case is stated by the court. The proceedings in the District Court of the District of Columbia, mentioned in the opinion were proceedings begun there in July, 1874, for the distribution of the "informer's" money among the officers and crew, of the Mississippi squadron. These proceedings were instituted by Admiral Porter, who placed in the custody of the court his check upon the assistant treasurer at St. Louis in favor of the assistant treasurer at Washington, for the amount of such money. The admiral had previously refused to accept the money for himself, as is related in the opinion. Messrs. Charles Devens, Atty Gen., Jos. K. McCammon and E. B. Smith, Asst. Atty-Gen., for appellant. Messrs. Jos. S. Fowler and John Pool, for appellee. Mr. Justice Field delivered the opinion of the court: The claimant is the surviving executor of the of March 12, 1863, 12 Stat. at L., 820. The cotton was thereupon sent to Cairo, where it arrived on the 7th of April, 1863, and was delivered to Captain Pennock, commanding at the station, and was by him turned over to the United States Marshal of the District. Soon afterwards, upon information given by Captain Pennock, the United States District Attorney filed a libel in the District Court of the United States for the Southern District of Illinois for the condemnation and sale of the cotton as forfeited to the United States. The libel stated that the seizure was made by order of Admiral Porter, on the Mississippi River, that river "Being a public water of the United States, navigable to the sea by vessels of ten or more tons burden;" and that the seizure was made for violation of the Non-Intercourse Act of July 13, 1861, 12 Stat. at L., 255, and the Proclamation of the President of August 16, 1861, 12 Stat. at L., 1262; and because the property belonged to a person in armed rebellion against the Government of the United States; and that the case was within the admiralty jurisdiction of the court. The case then proceeded, in accordance with the forms of admiralty practice and entitled as in admiralty, to a decree condemning the property as forfeited to the United States. The decree was subsequently opened as to part of the property, and the libel was amended by striking out the first allegation as to the Non-Intercourse Act, which was inapplicable to the cotton belonging to the estate of Jenkins and seized on his plantation. Pending the proceedings, the cotton was sold, and by the decree one half of the proceeds was paid into the Treasury, and the other half ordered to be paid to Captain Pennock, as informer, to whom a check for that amount was delivered. Captain Pennock handed the check to Admiral Porter, his superior officer. The admiral, unwilling to receive or keep it as informer, sent it to the Secretary of the Navy, requesting that the money might be distributed among the officers and crews of the Mississippi squadron as captors. The Secretary refused to distribute the money, and returned the check to the admiral, and he deposited it with the Assistant Treasurer at St. Louis, upon whom it was drawn. Treating the proceedings in the district court as in admiralty, they are without validity. The admiralty jurisdiction of the district court extends only to seizures on navigable waters, not to seizures on land. The difference is important, as cases in admiralty are tried without a jury, whilst in cases at law the parties are entitled to a jury, unless one is waived. U. S. v. The Betsey, 4 Cranch, 443; The Sarah,8 Wheat., 391. But it is contended by the Attorney General that the proceedings, however loose and defective in form, can be sustained under the Confiscation Act of July 17, 1862, 12 Stat. at L., 589, upon the charge that the property was seized as belonging to a person in armed rebell ion against the Government of the United States. Assuming that upon a vague allega tion of this kind, without designation of the owner, and with an erroneous statement in the libel of the place of seizure, a valid decree of condemnation could be rendered under the Act of 1862, previous to the passage of the Capt ured and Abandoned Property Act, it is contended on the part of the claimant that by the passage of this Act the provisions for confiscat ing property, in the Act of 1862. are impliedly repealed, as being repugnant to those of the latter Act. We do not think so. We agree with the Court of Claims on this point. The whole scope and purpose of the two Acts are different. The first Act provides for the punishment of treason, the seizure, condemnation and sale of property of persons engaged in the rebellion, and the payment of the pro ceeds into the Treasury, to be applied to the support of the Army of the United States. It was directed against persons committing certain overt acts of treason, and against their property. Its object was to punish the persons and to confiscate their property, and contemplated in the latter proceedings equally as in the former the intervention of judicial authority. found; the latter only in the insurgent States. The former, as respects property, had all the merciless features inseparable from a war measure, and treated as enemies, whose property could be confiscated, all residents within the insurgent States; the latter had this beneficent provision, that it made a discrimination among those whom the rule of international law classes as enemies, in favor of those who, though resident within the hostile territory, maintained in fact a loyal adhesion to the government. The two Acts can stand together, and the Confiscation Act be enforced as to all property seized under its provisions. The position of the claimant, as to an implied repeal from a supposed repugnancy of the provisions of the two Acts, is not, therefore, tenable. But upon another ground, apparent upon the face of the record, the proceedings and decree of the district court cannot be sustained. There was no previous seizure of the property under any order of the Executive; and such seizure was an essential preliminary to give jurisdiction to the court to adjudge its forfeiture and decree its condemnation. The executive seizure is the foundation of all subsequent proceedings under the Confiscation Act. Such is the plain import of the law, and it was so held by this court in Pelham v. Rose, 9 Wall., 103 [76 U. S., XIX., 602], and re-affirmed in The Confiscation Cases, 20 Wall., 92 [87 U. S., XXII., 320]. Here the property was seized by the naval forces of the United States upon the notion that being property in the enemies' country, it was subject to capture as a prize of war. The Secretary of the Navy, when informed of the capture, instructed the admiral in com. mand that the disposition of captured abandoned property was provided for by the Act of March 12, 1863, 12 Stat. at L., 820, evidently regarding the property as coming within that class, if not "prize property." No seizure by executive order is alleged in the libel, for none such was made. The seizure alleged is one made by the naval forces, and even that is stated to have been made at a place other than the plantation of the testator. No validity can be ascribed to a decree by a court which thus never had the property rightfully before it for condemnation. For one half of the proceeds of the sale paid into the Treasury under the decree the claimant is, therefore, clearly entitled to judgment. The second Act was designed to reach all property, with few exceptions, in the insurgent States, seized or taken from hostile possession by As to the remaining half also we have no the military or naval forces of the United States, doubt. The check which Captain Pennock rewhether belonging to friends or enemies, as ceived under the decree of the court, included well as property taken while the owner was vol- not only one half of the proceeds of the claimuntarily absent and engaged in aiding or enant's cotton, but of cotton libeled in other cases, couraging the rebellion. It provided for a sale amounting in the whole to $59,943.42. The of the property thus captured or abandoned admiral of the squadron to whom Captain Penwithout judicial proceedings, and the payment nock turned over the check, desired, as already of the proceeds into the Treasury, allowing the stated, that the money should be distributed loyal owner, who had never given aid or com- among the officers and crews of the Mississippi fort to the rebellion, the privilege of pursuing squadron as captors; and when the Secretary of the proceeds in the Court of Claims. There the Navy declined to make the distribution, he was also a marked difference in the effect of deposited the check with the Assistant Treas the proceedings under the two Acts. The Con- urer at St. Louis, upon whom it was drawn. fiscation Act authorized proceedings only Subsequently, in July 1864, the admiral inagainst the interest of the disloyal owner; the voked the aid of the District Court of the DisCaptured and Abandoned Property Act directed trict of Columbia to make the distribution, and the seizure of the property itself; and its sale placed in the hands of the district attorney a carried the title against all claimants. The for- certificate stating that the amount decreed to mer also took the property wherever it was him as informer, namely: $59,943.42, was on Mr. Justice Swayne delivered the opinion of the court: This is an appeal from the Court of Claims. The facts of the case cannot be more clearly or compactly stated than they are presented in the findings of the court. deposit with the Assistant Treasurer at St. | mons, Asst. Atty-Gen., and Edwin B. Smith, Louis, and expressing his wish as to the distri- Asst. Atty-Gen., for appellee. bution of the money, accompanying the certificate with a check for the amount. The district court took jurisdiction in admiralty of the case, and ordered the check to be deposited by the Marshal with the Assistant Treasurer at Washington, and that the money should remain in his hands subject to the further order of the court. The check was accordingly deposited with the Assistant Treasurer, and by a subsequent decree the court ordered the money to be distributed as desired, after the payment of certain costs and disbursements incurred in the proceedings. It is not a question upon which contention can arise that these proceedings of the District Court of the District of Columbia were extrajurisdictional from beginning to end; and indeed it is apparent from inspection of the decree that the court, assuming as valid the action of the Illinois Court, proceeded to distribute the money more upon the request of the admiral than upon any authority conferred by law. The decree of distribution signed by the Chief Justice of the district court shows the kind disposition of a learned magistrate to carry out the generous intentions of a gallant admiral to distribute among the officers and crew under his command money awarded to him as informer, but which he refused to take in that character, without assuming any authority beyond what the admiral implored him to exercise. But, as the Illinois Court had no jurisdiction to award to the admiral or his captain the money thus generously distributed, we are of opinion that the claimant must have judgment for the amount as well as for the other moiety of the proceeds of the cotton belonging to the estate of his testator. In the views thus expressed we have merely stated, in brief, the conclusions of the Court of Claims. In the opinion of that court the questions are so fully, clearly and exhaustively discussed as to leave nothing to be added. Judgment affirmed. (See S. C., 9 Otto, 493-496.) Limitations to government claims. 1. Claims against the United States in the Court of Claims are barred by statute, unless filed within six years after the claim accrues. 2. A claim for cotton which was shipped from Mobile to New York in August, 1865, and there sold, and the proceeds paid into the Treasury of the United States, filed on the 27th of March, 1872, is barred by the statute. [No. 111.] Argued Apr. 15, 1879. Decided May 5, 1879. APPEAL from the Court of Claims. The case is fully stated by the court. Messrs. John J. Weed and Matt. H. Carpenter, for appellants. Messrs. Charles Devens, Atty-Gen., T. S. Si The findings are as follows: "In July and August, 1865, the petitioners, James S. Clark and Edward Fulton, were merchants and copartners doing business at New Orleans, under the firm name and style of J. S. Clark & Co., and Joseph C. Palmer was a merchant at Mobile. In said July and August the petitioners were the owners jointly of 900 bales of cotton, which arrived at Mobile in the last part of said July or the first part of said August, consigned by them to T. C. A. Dexter, supervising special agent of the Treasury Department for the department of Alabama. At the times above stated the Government had charge of the railroads, and the cotton was consigned to Mr. Dexter to facilitate its arrival at Mobile, and on its arrival there it was claimed of him by the petitioners. In August, 1865, Mr. Dexter having received orders from the Treasury Department to ship all the cotton received by him, shipped the said 900 bales to New York, where it arrived and was sold by the United States, and the net proceeds thereof, amounting to $127,350, were paid into the Treasury. The said Clark and Fulton resided in New Orleans, and said Palmer in Mobile, during the whole rebellion, and this petition was filed March 27, 1872." The United States rely upon two defenses: (1) That the petitioners did not, within two years after the suppression of the rebellion, prefer their claim in the Court of Claims. This limitation is prescribed by the "Act for the Collection of Abandoned Property, and for the Prevention of Frauds in the Insurrectionary Districts of the United States," passed March 3, 1863. 12 Stat. at L., 820. It is confined to cases arising under that Act. (2) That the petition was not filed in the Court of Claims within six years after the cause of action accrued. This limitation is found in the 10th section of the Act relating to the Court of Claims, also of March 3, 1863. 12 Stat. at L., 765. That section enacts: "That every claim against the United States cognizable by the Court of Claims shall be forever barred unless the petition setting forth a statement of the claim be filed in the court, or transmitted to it under the provisions of this Act, within six years after the claim first accrues; Provided, That claims which have accrued six years before the passage of this Act shall not be barred, if the petition be filed in the court or transmitted as aforesaid within three years after the passage of this Act; And provided further, that the claims of married women first accrued during marriage, of persons under the age of twenty-one years, first accruing during minority, and of idiots, lunatics, insane persons, and persons beyond seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or | into the Treasury of the United States. The transmitted as aforesaid within three years after claim then first accrued. The petition was filed the disability had ceased; but no other disability on the 27th of March, 1872. This was at least six than those enumerated shall prevent any claim months in excess of the six years limited by the from being barred, nor shall any of the said dis- Statute. abilities operate cumulatively. In the Revised Statutes of 1874, section 1009, the first proviso was dropped. It was then needless, the time of the saving thereby created with respect to the claims to which it related having before expired. The counsel of the appellants have contended, in an argument of unusual research and ability, that the cotton in question was not captured or abandoned property within the meaning of the Act upon that subject, and that hence the limitation in that Act has no application to this case. Our view renders it unnecessary to consider this point. We, therefore, pass from it without further remark. The only question to be considered is whether the action is barred by the limitation of six years in the Court of Claims Act before referred to. Nothing can be clearer than the terms of the limiting section. It begins by declaring that every claim cognizable by the court "shall be forever barred" unless the petition "shall be filed within six years after the claim first accrued." Then follows the proviso naming the disabilities which shall arrest the running of the statute, and either of which shall give three years for the filing of the petition" after the disability has ceased." Finally, it is enacted that "No other disability shall prevent any claim from being barred, nor shall any of said disabilities operate cumula tively." It is not claimed that any of the disabilities named affected either of the appellants. During all this period the appellants could easily have put the proper machinery of the law in motion. The delay is unaccounted for. The supplementary briefs filed by the parties since the argument at the bar do not, we think, call for any special remarks. The case is clearly within the bar of the Statute. and we are constrained to hold accordingly. The judgment of the Court of Claims is affirmed. Dissenting, Mr. Justice Field, Mr. Justice Miller and Mr. Justice Bradley. Surgeon, UNITED STATES, Piff., v. CHARLES N. GERMAINE. 1. A surgeon, appointed by the Commissioner of 3. The Commissioner of Pensions is not the head of a department, within the meaning of the Con- Argued Apr. 7, 1879. Decided May. 5, 1879. a certificate of division in opinion between ed States for the District of Maine. The case is fully stated by the court. Mr. Edwin B. Smith, Asst. Atty-Gen., for plaintiff: In the early part of April, 1862, New Orleans the Judges of the Circuit Court of the Unit was captured by the naval forces of the United States under the command of Admiral Farragut. On the first of May following the national military forces under the command of General Butler took possession of the city. It was never afterwards in possession of the insurgents. Des mare v. U. S., 93 U. S., 605 [XXIII., 959]. The appellants resided there. It is a part of the public history of the country, of which we are bound to take judicial notice, that from the time last mentioned, communication between that place and the seat of the National Govern ment was constant and uninterrupted. In the case just referred to, this court said: "Upon the issuing of General Butler's proclamation, the legal status of New Orleans and its inhabitants with respect to the United States became changed. Before that time the former was enemy's territory and the latter were enemies. * * General Butler's proclamation was proof of the subjugation of the city and the re-establishment of the national authority. The hostile character of the territory thereupon ceased, and the process of rehabilitation began. The inhabitants were at once permitted to resume, under the regulations prescribed, their wonted commerce with other places, as if the State had not belonged to the rebel organization. The Venice, 2 Wall., 258 [69 U. S., XVII., 866]. But they were clothed with new duties as well as new rights." The cotton was shipped to New York in August, 1865, and there sold and the proceeds paid That Germaine was a federal officer, see U. S.v. Maurice, 1 Brockb., 102; see, also, State v. Wilson, 29 Ohio, 347, et. seq. Mr. T. B. Reed, for defendant. Mr. Justice Miller delivered the opinion of the court: The defendant was appointed by the Commissioner of Pensions to act as surgeon, under the Act of March 3, 1873, 17 Stat. at L., 566, the 3d section of which is thus stated in the Revised Statutes as section 4777: "That the Commissioner of Pensions be, and he is hereby, empowered to appoint, at his discretion, civil surgeons to make the periodical examination of pensioners which are or may be required by law, and to examine applicants for pension, where he shall deem an examination by a surgeon appointed by him necessary; and the fee for such examinations, and the requisite certificates thereof in duplicate, including postage on such as are transmitted to pension agents shall be two dollars, which shall be paid by the agent for paying pensions in the district within which the pensioner or claimant resides, out of any money appropriated for the payment of pensions, under such regulations as the Commissioner of Pensions may prescribe." |