1. The facts on which the jurisdiction of the Circuit Courts of the United States rests must, in some form, appear on the face of the record of suits prosecuted before them; and it is error for a court to proceed without its jurisdiction is shown.

2. If the party in regard to whom the necessary citizenship is not shown actually possesses such citizenship, the record cannot be amended in this court so as to show the fact; but the court below may, in its discretion, allow that to be done when the case gets back there.

3. A suit in equity, for a perpetual injunction, to restrain the enforcing a judgment in ejectment, rendered in the United States Circuit Court, brought in the same court, is merely an incident of and ancillary to the ejectment suit; and the circuit court has jurisdiction of the case without any averment of the citizenship of the parties.

[No. 195.] Submitted April 2, 1888. Decided April 16, 1888. Petition submitted April 28. Decided May 14, 1888.

APPEAL from a decree of the Circuit Court of the United States for the Eastern District of Arkansas, in favor of plaintiffs in a suit in equity brought for the release of land from a deed of trust. Reversed.

On petition for reconsideration,decree of April 16 vacated and case ordered to stand for hearing on the merits at the next term, in its order. The facts are stated in the opinions. Messrs. D. H. Reynolds and A. H. Garland, Atty-Gen., for appellant:

The court below erred in enjoining appellant instead of dismissing appellees' bill.

Conway v. Ellison, 14 Ark. 360; Herndon v. Higgs, 15 Ark. 392; Dickson v. Richardson, 16 Ark. 114; Earle v. Hale, 31 Ark. 472.

To maintain the suit in ejectment by Johnson, he must have shown: (1) a legal estate in himself; (2) right of entry; (3) defendants in possession.

Daniel v. Lefevre, 19 Ark. 201.

The dispute was on the legal estate and the right of entry, which are matters that law passes upon and not equity; and there is no averment that they were prevented from interposing their defense by accident of any kind, or by the fraud of appellant, and the suit

should have been dismissed.

Goolsby v. St. John, 25 Gratt. 146; Hendrickson v. Hinckley, 58 U. S. 17 How. 443 (15: 123); New York L. Ins. Co. v. Bangs, 103 U. S. 780 (26: 608); Crim v. Handley, 94 U. S. 652 (24: 216); Very v. Watkins, 18 Ark. 551; Murphy v. Harbison, 29 Ark. 340.

Robinson, the vendor of Christian & Stuart, is a necessary party.

Hoe v. Wilson, 76 U. S. 9 Wall. 501 (19:762). Mr. U. M. Rose, for appellees:

Persons dealing with an agent, in the business for which he was appointed, may rely on a continuance of his authority until they are informed of its revocation.

Hatch v. Coddington, 95 U. S. 48 (24: 339); Southern L. Ins. Co. v. McCain, 96 U. S. 84 (24: 653).

Under all the circumstances it is clear that Mrs. Johnson and the appellant are estopped to deny the agency.

Schimmelpenich v. Bayard, 26 U. S. 1 Pet. 264 (7:138).

Mr. Justice Blatchford delivered the opinion of the court:

This is a suit in equity, brought in the Circuit Court of the United States for the Eastern District of Arkansas, by George Christian and Jerry Stuart, against Joel Johnson, to obtain a decree for the release of certain land from liability under a deed of trust. The defendant appeared and answered, a replication was filed and proofs were taken. The court, on final hearing, made a decree in favor of the plaintiffs. The defendant has appealed to this court.

On looking into the record, we can find no evidence of the jurisdiction of the circuit court. The bill commences in this way: "The complainants, George Christian and Jerry Stuart, citizens of the County of Chicot and State of Arkansas, would respectfully represent," etc. Joel Johnson is the sole defendant, but there is no allegation as to his citizenship, nor does that appear anywhere in the record. Under these self of the absence of the averment of the neces- [644] circumstances, this court must take notice for itsary facts to show the jurisdiction of the circuit court, and must reverse the decree, in accordance with the settled practice.

cases:

Continental Ins. Co. v. Rhoads, 119 U. S. 237 It is only necessary to refer to the case of [30: 380], where it was said, citing numerous the facts on which the jurisdiction of the circuit It was settled at a very early day that face of the record of all suits prosecuted before courts rests must, in some form, appear on the them;" and that "It is error for a court to proceed without its jurisdiction is shown."

It was also said in the same case, citing Morgan v. Gay, 86 U. S. 19 Wall. 81 [22: 100] and if the party in regard to whom the necessary Robertson v. Cease, 97 U. S. 646 [24: 1057], that, citizenship was not shown actually possessed such citizenship, the record could not be amended in this court so as to show the fact, but that the court below might, in its discretion, allow that to be done when the case should get back

there.

In accordance with these views, the decree of the Circuit Court is reversed, with costs; and the case is remanded to that court for further pro ceedings.

Thereafter, upon petition of counsel for appellees for reconsideration, upon the ground that the reversal had been "based upon an ob vious oversight," etc., on May 14, 1888,

Mr. Justice Blatchford delivered the following opinion of the court:

In this case, on the 16th of April last, this court made a decree reversing with costs the decree of the circuit court and remanding the case to that court for further proceedings. This was done upon the view that the record contained no evidence of the jurisdiction of the circuit court, arising out of the citizenship of the parties; but the fact was overlooked that the bill states that the defendant had obtained a judgment in ejectment in the same court (the Circuit Court of the United States for the Eastern District of Arkansas), and was seeking to oust the plaintiffs from the possession of the land involved, by a writ of possession founded on the judgment. The bill further sets forth that the plaintiffs in this suit, who are the appellants, had not been admitted to interpose in the ejectment suit an equitable defense to the same, which they state with particularity in the bill in this suit, and which they seek to avail themselves of herein. One of the prayers of the bill is for a perpetual injunction restraining the defendant from enforcing or attempting to enforce against the land the judgment in ejectment. The answer admits the recovery of the judgment in the same court.

This is sufficient to give the circuit court jurisdiction of the case, without any averment of the citizenship of the parties; and not only is the present suit in equity merely an incident of and ancillary to the ejectment suit, but no other court than the one which rendered the judgment in the ejectment suit could interfere with it or stay process in it, on the grounds set forth in the bill. Milwaukee & M. R. R. Co. v. Soutter, 69 U. S. 2 Wall. 609, 633 [17:886, 895]; Krippendorf v. Hyde, 110 U. S. 276 [28:145]; Pacific R. R. Co. v. Missouri Pac. R. Co. 111 U. S. 505 [25: 498].

The decree made by this court on the 16th of April last is therefore vacated, and the case will stand for hearing on the merits at the next term of this court, in its order on the docket.

The facts are stated in the opinion. Mr. M. F. Morris, for appellant: The reference of the claim by Congress constituted a submission to arbitration, and the Quartermaster-General's finding was an award upon which suit can be maintained.

Gordon v. U. S. 74 U. S. 7 Wall. 188 (19: 35); Chorpenning v. U. S. 94 U. S. 397 (24: 126). But whether there was here a technical arbitration or not it is certain that, in the language of the court in the case of the U. S. v. Kaufman, 96 U. S. 567 (24: 792), the allowance of a claim under this statute is equivalent to an account stated between private parties, which is good until impeached for fraud or mistake.

Messrs. A. H. Garland, Atty-Gen., and Heber J. May, Asst. Atty-Gen., for appellee:

The report of the Quartermaster-General was not an award.

Hayburn's Case, 2 U. S. 2 Dall. 409 (1: 436); U. S. v. Ferreira, 54 U. S. 13 How. 50, 51 (14: 46); Bruce v. U. S. 1 Ct. Cl. 343; Gordon v. U. S. 74 U. S. 7 Wall. 188 (19: 35); S. C. 7 Ct. Cl. 46; Gilbert v. U. S. 1 Ct. Cl. 108; Lavalette v. U. S. Id. 147; Carmick v. U. S. 2 Ct. Cl. 126; Chorpenning v. U. S. 3 Ct. Cl. 140; 8. C. 11 Ct. Cl. 625, 12 Ct. Cl. 110, 94 U. S. 397 (24: 126); Ludington v. U. S. 15 Ct. Cl. 453; Huffman v. U. S. 17 Ct. Cl. 55; Kaufman v. U. 8. 11 Ct. Cl. 659; Dodd v. U. S. 21 Ct. Cl. 117.

The claim cannot be treated as an account stated.

Whitwell v. Willard, 1 Met. 216; Mc Williams v. Allan, 45 Mo. 573.

A stated account properly exists only where accounts have been examined and the balance admitted as the true amount between the parties, without having been paid.

Reinhardt v. Hines, 51 Miss. 344; McCall v. Nave, 52 Miss. 494; Stebbins v. Niles, 25 Miss. 267; Zacarino v. Pallotti, 49 Conn. 36.

Mrs. Nutt has brought her claim within the purview of the Act and cannot accept the part of it which benefits her, and reject the part which is adverse to her interests.

U. S. v. Adams, 74 U. S. 7 Wall. 463 (19: 249); U. S. v. Child, 79 U. S. 12 Wall. 232 (20:

Deceased, Appt.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 650-655.) Claim of Julia A. Nutt-report upon-appropriation.

1. The report of the Quartermaster-General to Congress of Dec. 22, 1882, made under the Act of Aug. 7, 1882, for the relief of Julia A. Nutt, was for the information of Congress, and is not an award

in pursuance of an arbitration.

2. Such report is not an account stated; in order to constitute an account stated, the statement of the account must be adopted by one party and sub

mitted as correct to the other.

3. The appropriation made by Congress in the Act of July 5, 1884, of part of the amount recommended by the Quartermaster-General to be paid to her, is not an adoption of his report by Congress, and is not a recognition that a larger amount

was due.

[No. 1880.] Submitted April 2, 1888. Decided April 16, 1888. APPEAL from a judgment of the Court of Claims, dismissing petition of appellant. Affirmed.

(20: 753); Baird v. U. S. 96 U. S. 430 (24: 703).

Mr. Justice Matthews delivered the opinion of the court:

An Act of Congress, approved August 7, 1882, for the relief of Julia A. Nutt, widow and executrix of Haller Nutt, deceased, 22 Stat. 734, declared: "That the Quartermaster-General of the United States is hereby authorized and directed to examine and adjust the claims of Julia A. Nutt, widow and executrix of Haller Nutt, deceased, late of Natchez, in the State of Mississippi, growing out of the occupation and use by the United States Army, during the late rebellion, of the property of the said Haller Nutt during his lifetime, or of his estate after his decease, including live stock, goods, and moneys taken and used by the United States or the armies thereof; and he may consider the evidence heretofore taken on said claim, so far as applicable, before the commissioners of claims, and such other legal evidence as may be adduced before him in behalf of the legal representatives of Haller Nutt, de

ceased, or in behalf of the United States, and shall report the facts to Congress to be considered with other claims reported by the Quarter[652] master-General: Provided, That no part of said claims, upon which said commissioners of claims have passed on the merits, shall be considered by the Quartermaster-General.

On December 22, 1882, the QuartermasterGeneral, acting under and pursuant to this Act, reported to Congress, through the Secretary of War, that he had examined the claims of Mrs. Julia A. Nutt, as widow and executrix, and the nature and manner of his investigation, and the circumstances and evidence relating to the same. He further reported as follows: "All the evidence considered, as well as the additional information I have been able to gather, warrants me in recommending that Julia A. Nutt be paid the following items, which, in my judgment, are sufficiently proved by the evidence, viz.: He then states various items of property, with their value, the total amounting to $256,884.05. This report was transmitted direct by the Secretary of War to Congress, but was not transmitted to or acted upon by the accounting officers of the Treas ury. On July 5, 1884, Congress passed an Act (23 Stat. at L. 552) "for the allowance of certain claims reported by the accounting officers of the United States Treasury Department, and for other purposes. This statute enacts: "That the Secretary of the Treasury be, and he is hereby, authorized and required to pay, out of any money in the treasury not otherwise appropriated, to the several persons in this Act named, the several sums mentioned herein, the same being in full for, and the receipt of the same to be taken and accepted in each case as a full and final discharge of the several claims examined and allowed by the proper accounting officers under the provisions of the Act of July 4, 1864, since January 6, 1883, namely:" Then follows a list of the names of the persons, with the amount payable to each, under the head of the several States of Tennessee, Kentucky, West Virginia, Indiana, Pennsylvania, Ohio, Maryland, Missouri, District of Columbia, Colorado, Illinois, Indian Territory, Iowa, Kansas, and, finally, under the head of Mississippi, as follows: "To Julia A. Nutt, widow and executrix of Haller [653] Nutt, deceased, of Adams County, the sum of $35,556.17." This amount was paid to and accepted by the claimant. The payment and receipt of this sum under the Act of July 5, 1884, however, it is contended, does not operate as a full and final discharge of her claim against the Government, because it is not within the description contained in the Act of "Claims examined and allowed by the proper accounting officers under the provisions of the Act of July 4, 1864." The right to recover the full amount of the claim, after deducting this payment, is rested by counsel for the claimant upon the Act of August 7, 1882, and is based upon the following propositions:

2. If the reference to the QuartermasterGeneral, and the finding by him, do not constitute an arbitration and award, they are at least the equivalent of an account stated between private individuals.

3. Even if of itself the finding of the Quartermaster-General did not constitute an account stated, it became such by its acceptance by Congress and the appellant.

There is nothing, however, in the language of the Act of August 2, 1882, to justify the inference that the finding reported by the Quartermaster-General is an award in pursuance of an arbitration. On the contrary, the terms of the Act distinctly negative that idea. There is no recital of a mutual submission by the parties of any controversy to an arbitrator. The Quartermaster-General was authorized and directed by Congress to examine and adjust the claims in question, but not for the purpose of settling and adjudging any controversy in relation thereto between the United States and the claimant. He was required to report the facts to Congress, not to publish an award to the parties; and the object for which his report was required was that the claim should be "considered with other claims reported by the [654] Quartermaster-General." This report evidently is purely for the information of Congress itself, in order that it, being thus advised, might thereafter deal with the claim as in its judgment should seem best.

On this point the language of this court in Gordon v. U. S. 74 U. S. 7 Wall. 188, 195 [19:35,37] is applicable. It was there said: "The various Acts and resolutions of Congress in this case emanated from a desire to do justice and to obtain the proper information as a basis of action, and were not intended to be submissions to the arbitrament of the accounting officer. They were designed as instructions to the officer by which to adjust the accounts, Congress reserving to itself the power to approve, reject, or rescind, or to otherwise act in the premises as the exigencies of the case might require. In other words, these references only require the officer to act in a ministerial, not a judicial, capacity."

was made accordingly, can it be doubted that the merchant might thereafter, because he had come to the conclusion that the claim was tainted with fraud, or had been already fully paid, or for any other reason, or as a matter of choice, without assigning any reason, decline to recognize what had been done as of any validity, and withdraw the authority under which the proceeding had been taken? The reason of the right would be that there was no binding mutuality of assent, no consideration, and hence no legal obligation resting upon either party."

The same reasons dispose of the second proposition, and show that the report of the Quartermaster-General is no more an account stated between the parties than it is an arbitration and award. In order to constitute an account stated between individuals, the statement of the account must be adopted by one party and submitted as correct to the other. But here Congress did not adopt the report of the Quartermaster-General as its statement of what was due from the United States; nor was the report submitted to the claimant as a correct statement of indebtedness.

The acceptance by Congress and the appellant, referred to in the third proposition, can only mean the appropriation made by Congress in the Act of July 5, 1884, but certainly that cannot be considered an adoption of the report of the Quartermaster-General. It does not purport to be an appropriation of a partial payment, as a credit upon a larger sum admitted to be due. Even though it be admitted that the language of the Act in its first clause, declaring that the receipt of the money appropriated in each case shall be taken as a full and final discharge of the several claims, does not apply, yet there is no inference that the appropriation actually made was intended to be a recognition of a larger amount in fact due. The presumption is the other way; and the right conclusion is that Congress appropriated all that it meant to acknowledge.

The judgment of the Court of Claims dismiss ing the petition is therefore affirmed.

department and in vessels employed by authority of law.

R. S. § 1571; Naval Regulations, 1876, 85, par. 38; U. S. v. Symonds, 120 U. S. 46 (30: 557); Schoonmaker v. Ŭ. S. 19 Ct. Cl. 172; Carpenter v. U. S. 15 Ct. Cl. 247.

Naval regulations in force at the time of the passage of the third section of the Act of 1860, 12 Stat. at L. 27, have the force of law.

Gratiot v. U. S. 45 U. S. 4 How. 80 (11: 884); Ex parte Reed, 100 U. S. 13 (25: 538); R. S. 1547. Mr. Linden Kent, for appellee.

Mr. Justice Matthews delivered the opinion of the court:

The claimant, Edward T. Strong, being a Lieutenant Commander in the United States Navy, by an order of the Secretary of the Navy of February 4, 1886, was directed to report for duty as executive officer on board the United States receiving ship Wabash at Boston, Massachusetts. The order designated his employment as "shore duty." In compliance with the order he reported for such duty on board the ship on February 20, 1886, and continued from that time to discharge the required duties on board such ship until May 11, 1886, when he was relieved from duty thereon. During that period he was allowed and paid only as for shore duty. He claimed to be entitled to receive pay for sea service. Judgment was rendered in his favor by the court of claims for $111.20, being the difference between shore pay and sea pay. From this judgment the United States prosecutes the present appeal.

From the findings of facts it appears that The Wabash is a receiving ship built of wood, about thirty-one years old, stationed at the navy yard in Boston for over twelve years past. The vessel is and has been used as a naval recruiting station whilst at the Boston Navy Yard. There is a roof built over the deck. The ship is connected and communicates with shore by a rope. There is a large boat or scow that plies between the ship and the wharf by means of a crank and connected with the rope. Steam is used only for heating purposes and pumps. All the anchors have never been taken up at the same time. Row boats were also used in going to and from the ship. The Wabash has remained in the same place in which she was anchored since October 28, 1875, and has been and was, during the time of service thereon by the claimant, under the orders and direction of the Secretary of the Navy. thereon she was not in a safe condition for During the period of the claimant's service cruising. She is a sailing and steam vessel, and had on board sails, spars, and tackle; she was capable of being taken out to sea under ficient for that purpose; she could have been steam, her machinery and boilers being suftaken out to sea under sail, but in the condition

apparatus, without repairs, it would not have been, in either case, advisable or safe. The duties of executive officer of the vessel performed by the claimant were similar to those of executive officers on cruising ships. In addition to those he had other duties, which were more exacting and arduous than those on board cruis