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a Department, it is the safer practice to recite the application for its adjustment." The petition of an officer, since the Tucker Act of March 3, 1887, need not, ordinarily, allege that his claim for fees has been presented to the accounting officer. If a Congressional Committee has transmitted to the court a bill for a claimant's relief, his petition should be confined to setting forth substantially the same cause of action.49 If the claim rests upon a statute, it is the better practice to refer specifically to the statute. A petition which is not verified may be corrected, unless a special statute make a verification a jurisdictional necessity.52

§ 445. Pleadings by defendant in Court of Claims.-" Demurrers to petitions and general traverses thereof must be filed within two months after the filing of the petition; and pleas averring special defense, set-off, or counter-claim, within one month after the claimant places his case on the notice book."1 "When the Attorney-General demurs to the petition, he must set forth the grounds of the demurrer specially; but if the ground be that the petition does not allege facts sufficient to constitute a cause of action, that objection may be stated generally. If the demurrer be sustained, the claimant may, once of right, amend his petition, within such time as the court may direct; but if he decline to amend, judgment will be rendered dismissing the petition. If the demurrer be overruled the defendants may, of right, plead to the petition, within such time as the court may direct; but if they decline so to plead, judg ment will be rendered for the claimant according to the prayer of the petition; or the court will order an assessment of damages, as the Attorney-General may elect." "Within one month after the filing of a set-off or counter-claim by the defendants, the claimant must answer the same by replication under oath; in default whereof the court may, after ten days' notice by the defendants to the claimant, order that the set-off or counterclaim be considered as admitted."

47 Calkins v. U. S., 1 Ct. Cl. 382. 48 Ravesies v. U. S., 21 Ct. Cl. 243; Bryan v. U. S., 21 Ct. Cl. 249.

49 Choteau v. U. S., 20 Ct. Cl. 250. 50 Noble v. U. S., Dev. 135.

51 Griffin v. U. S., 13 Ct. Cl. 257.

52 Cherokee Indians v. Cherokee Nations, 19 Ct. Cl. 35. § 445. Ct. Cl. Rule 15. 2 Ct. Cl. Rule 16.

3 Ct. Cl. Rule 17.

"When the Attorney-General pleads, under section 1086 of the Revised Statutes, that the claimant has practiced or attempted to practice fraud, he shall set forth the facts with sufficient particularity to enable the claimant to answer the same in detail; and the claimant shall, within two months after the filing of said plea, reply to the same with like particularity under oath." "Averments in regard to the time when a claim first accrued, or in regard to an alleged disability of the claimant, will be held to be put in issue by the defendant's general traverse." 5 "The court will take notice that a claim is barred by the Statute of Limitations, when that appears, although the defense is not raised by the defendant's pleadings.'

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The defendant may demur at any time before pleading to the merits; and a plea in bar may, by leave of the court, be withdrawn and a demurrer filed. It has been held that the United States waives a verification by filing a general traverse to an unverified petition. A traverse puts upon the petitioner the burden of proving all material allegations. Matters in the petition, not denied in the traverse, are presumed to be true.10 Special rules of pleading do not bind the Court of Claims, but are usually followed, although the pleadings are construed liberally." An objection to the right of the petitioner's action should be raised by demurrer or plea.12 It has been held that if the objection is to the jurisdiction only, it should be by plea. A plea was held bad for duplicity when it set up a recovery in a previous action, and objected that the cause of action now sued upon accrued prior to the trial of such action, and might have been tried therein." The United States may obtain leave after issue has been joined to plead specially to the allegations of loyalty.15

4 Ct. Cl. Rule 18.

5 Ct. Cl. Rule 73.

6 Finn v. U. S., 123 U. S. 227.

7 Matthew's Case, 35 Ct. Cl. 595. 8 Griffin v. U. S., 13 Ct. Cl. 257. A general traverse admits the competency of a claimant corporation to sue in its corporate capacity. Southern Pacific Co.'s Case, 28 Ct. Cl. 77. 9 Calkins v. U. S., 1 Ct. Cl. 382. 10 Hill v. U. S., 8 Ct. Cl. 470; U. S.

v. Insurance Cos., 22 Wall. 99; s. c. as Home Ins. Co. v. U. S., 8 Ct. Cl. 449.

11 Little v. Dist. of Col., 19 Ct. Cl.

323.

12 Pennsylvania Co. v. U. S., 7 Ct. Cl. 401.

13 Ibid.

14 Shrewsbury v. U. S., 9 Ct. Cl. 263. 15 Pierce v. U. S., 1 Ct. Cl. 195.

§ 446. Amendments in Court of Claims.- The plaintiff has the right to amend his petition once of right, within such time as the court directs when a demurrer to his petition is sustained.1

Amendments of errors which have not misled the other party and which may be corrected without injustice, are usually allowed. Leave of the court is necessary for an amendment.3 When a case is remanded for further proof, and the order specifies the amendment allowed, further leave need not be granted. A petition which is not verified may be corrected by amendment unless a special statute makes verification jurisdictional. An amendment showing that the suit is brought in a representative capacity, and that a decedent owned the property claimed, may be allowed. A petition by joint owners may be so amended as to ask for separate judgments. Suits may be consolidated. A change of parties claimant may be allowed by amendment, when no new cause of action is introduced, and the effect is to substitute one representative for another.10

§ 446. 1Ct. Cl. Rule 16.

tion be brought in by a second suit,

2 Thomas v. U. S., 15 Ct. Cl. 335; and the two suits be then consolJones v. U. S., 1 Ct. Cl. 383.

Shaw v. U. S., 9 Ct. Cl. 301. For the practice, see Ct. Cl. Rule 13, supra, $444.

Shaw v. U. S., 9 Ct. Cl. 301. 'Griffin v. U. S., 13 Ct. Cl. 257. 6 Cherokee Indians v. Cherokee Nation, 19 Ct. Cl. 35.

Thomas v. U. S., 15 Ct. Cl. 335. 8 Mott v. U. S., 3 Ct. Cl. 218; Eager v. U. S., 33 Ct. Cl. 336, 337, per Mott, C. J.: "It has been a common and convenient practice in this court, where there are two suits between the same parties growing out of the same contract or cause of action, to consolidate them, to the end that the evidence in the first need not be duplicated in the second, and that both may be disposed of by one trial and argument. Conversely, under all conditions, parties have been allowed to bring in subsequently accruing demands by amendments. In such cases it is manifestly immaterial whether the second cause of ac

idated, or whether it be brought in by directly making it a count in the original suit. The difference will be only one of form. But this practice extends properly only to cases where the cause of action is substantially the same in both suits, as for instalments successively becoming due on the same contract, or rents for different periods on the same lease. In such cases an adjudication in the first suit would be operative as res adju dicata or by way of estoppel in the second; that is to say, if the contract or lease has been established in the first suit, all that the plaintiff will have to show in the second will be that another instalment has become due; and, conversely, if the contract or lease has been declared void in the former suit, the defendants, in the latter one, can use the adjudication by way of estoppel."

9 Bellocque v. U. S., 8 Ct. Cl. 493. 10 Cote v. U. S., 3 Ct. Cl. 64.

12

The assignor may be substituted for the assignee by amendment." The vendee of the assignee may be substituted, although the claimant had assigned to another prior to his bankruptcy. It has been held that a new party cannot be substituted by amendment when not in privity with the original ones. 13 The successor of one corporation to the franchises and property of another which had brought a suit in the Court of Claims was not allowed a substitution." Unnecessary parties may be stricken out by amendment.15 A person who at the time when the suit was commenced was under a disability, may be made a party by amendment.16 When a claim has been referred by Congress, a party who claims as assignee cannot intervene unless the act making the reference permits his intervention." A partner cannot intervene when the firm claims the same property.18 If services rendered under the contract sued upon subsequently to the commencement of suit are brought into the case by consent, the whole matter will be disposed of as if a single cause of action.19 An amendment may be allowed to the petition more than six years after the Statute of Limitations began to run.20

§ 447. Attorneys in Court of Claims.-"Suits may be commenced by the claimant in person, or through his attorney in fact, or an attorney of this court. If the claimant is represented by an attorney in fact, the power must be filed with the clerk, and its execution must be proved or acknowledged befor an officer authorized to take acknowledgments of deeds."1

11 Burke v. U. S., 13 Ct. Cl. 231. See U. S. v. Gillis, 95 U. S. 407.

12 Ches. & O. R. Co. v. U. S., 19 Ct. Cl. 300. But an administrator or executor of a decedent may be substituted for his heirs, Cowan Infants' Case, 5 Ct. Cl. 106; Woodruff and Bouchard's Case, 7 Ct. Cl. 605; an administratrix for herself as widow, Skelly v. U. S., 32 Ct. Cl. 227; Thomas v. U. S., 15 Ct. Cl. 335. In a suit against the United States and a tribe of Indians, another tribe was substituted for the latter after the statute of limitations had expired. v. U. S., 31 Ct. CL. 353.

Duran

13 Chesapeake & O. R. Co. v. U. S., 19 Ct. Cl. 300.

14 Ches. & O. R. Co. v. U. S., 19 Ct. Cl. 300.

15 Molina v. U. S., 6 Ct. Cl. 269; Benton v. U. S., 5 Ct. Cl. 692; Roddin v. U. S., 6 Ct. Cl. 308.

16 Stanton v. U. S., 4 Ct. CL. 456. 17 Atocha v. U. S., 6 Ct. Cl. 69. 18 Bellocque v. U. S., 8 Ct. Cl. 493. 19 Cape Ann G. Co. v. U. S., 20 Ct. Cl. 1.

20 Griffin v. U. S., 13 Ct. Cl. 257. See also Devlin v. U. S., 12 Ct. Cl. 266. § 447. Ct. Cl. Rule 1.

"Any person of good moral character, who has been admitted to practice in the Supreme Court of the United States, or in the highest court of the District of Columbia, or in the highest court of any State or Territory, may be admitted, on motion in open court, to practice as an attorney and counselor of this court. He may also be admitted by an order at chambers, on its being shown by affidavit or otherwise that he is qualified as above provided."2

"There shall be but one attorney of record for the claimant in any case at any one time; but a claimant may be permitted to change his attorney, on such conditions as the court may prescribe. A firm of attorneys will be regarded as the attorney of record.” 3

"Petitions, pleadings, and motions on the part of the claimant will be signed by the attorney of record; pleadings and motions on the part of the United States, by the Assistant Attorney-General." 4

"Attorneys of record, or the claimant, if he appear in person, will, on commencing or appearing in a suit, register with the clerk of the court a postoffice address, to which all notices required by these rules or ordered by the court may be addressed." "Counsel, other than the attorney of record, may be heard on either side at the trial or in any stage of the proceedings, but shall not be entitled to file pleadings, give notices, or make motions." 6

§ 448. Evidence before the Court of Claims.-The following statutes and rules regulate evidence before the Court of Claims:

"The judges and clerks of said court may administer oaths and affirmations, take acknowledgments of instruments in writing, and give certificates of the same."1 "Whenever it is material in any claim to ascertain whether any person did or did not give any aid or comfort to the late rebellion, the claimant asserting the loyalty of any such person to the United States during such rebellion shall be required to prove affirmatively

2 Ct. Cl. Rule 2.

3 Ct. Cl. Rule 3.

4 Ct. Cl. Rule 4. Counsel can neither make motions in their own name nor in the name of the attorney

of record without his authority. In the Matter of Counsel, 32 Ct. Cl. 231. 5 Ct. Cl. Rule 5.

6 Ct. Cl. Rule 6.

§ 448. U. S. R. S., § 1071.

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