The Court of Claims had previously held, in Turner v. United States (19 C. Cls. R., 629), that a marshal was not entitled to charge fees for remanding prisoners when a commissioner had needlessly issued temporary warrants of commitment; and also in Gilbert v. United States (23 C. Cls. R., 218) and Davies v. United States (23 C. Cls. R., 468), that a commissioner could not receive fees for issuing temporary mittimuses, because they were not required, unless in exceptional cases, as by the original warrant the defendants could remain in the custody of the marshal.

In Faucett v. United States (26 C. Cls. R., 154), decided after the decision of the Supreme Court in the Ewing Case, fees for issuing temporary mittimuses were not allowed because no exceptional facts were proven to show that the mittimuses were necessary. In that case the court said:

"This court has several times decided that it is the duty of the marshal to hold the prisoner on his original warrant while the examination is in progress. (Turner's Case, 19 C. Cls. R., 629; Gilbert's Case, 23 id., 218; Davies's Case, id., 468; Stafford's Case, 25 id., 280.)

"There are exceptions to this general rule, some of which are noted in the cases cited. In Stafford's Case it appears that the examinations were adjourned from day to day, that the marshal had no convenient place for keeping the prisoners outside the jail, and that the jailer refused, under the decisions of the State courts, to receive them from the marshal without a special warrant of commitment. Upon this state of facts the court said:

"Adhering to the doctrine laid down in Turner's Case (19 C. Cls. R., 629), Gilbert's Case (23 id., 218), and Davies's Case (id., 468), the court is of opinion that the facts shown to exist in the pending case bring them (the temporary warrants) within the exceptions referred to in cases cited.'

"No such facts are shown to have existed in the case at bar, and the charges in item 1 are disallowed."

From an examination of these authorities, it seems clear that while in certain cases temporary mittimuses are required, and fees for issuing them will therefore be allowed, yet that the necessity for the issuance of such mittimuses should clearly

appear.

Where a temporary mittimus is issued for the custody of the defendant for part of a day only, it will be necessary to prove the special circumstances which rendered such a mittimus necessary, as that the prisoner was a dangerous character and could not be properly guarded by the marshal, for ordi

narily it is the duty of the marshal to keep the prisoner until the case is disposed of for the day.

Notwithstanding the facts stated by Mr. Anderson and the approval by the court of his account, I am so convinced, from the large number of temporary mittimuses issued by him for a part of a day only-at least one such being issued in each casethat the proper discretion has not been exercised by the commissioner, and that his claim for these fees is one which he should prove in court, where the necessary cross-examination can be made by the Government's attorneys as to the necessity for the practice which he seems to have adopted in all cases. All fees for temporary mittimuses for holding a prisoner for part of a day only and copies thereof will, upon this revision, be disallowed.

R. B. BOWLER,

Comptroller.

CONSTRUCTION OF ACT FOR REIMBURSEMENT OF OFFICERS AND SEAMEN FOR PROPERTY LOST IN NAVAL SERVICE.

Under the act of March 2, 1895, for the reimbursement of officers and seamen for property lost or destroyed in the naval service, the "fault or negligence on the part of the claimant" which will preclude his recovery is such fault or negligence as constitutes a contributing and readily connected cause of the loss of his property.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

February 6, 1896.

SIR: As required by the provisions of section 8 of the act of July 31, 1894 (28 Stat., 208), you have reported for the approval, disapproval, or modification of this office a construction of the act of March 2, 1895 (28 Stat., 962), providing for the reimbursement of officers and seamen for property lost or destroyed in the naval service of the United States. Your decision was upon the claim of Lieut. Charles H. Lyman, United States Navy, navigator of the U. S. S. Kearsarge, at the time that historic vessel was wrecked on February 2, 1894, and is to the effect that Lieutenant Lyman is not entitled to be reimbursed the value of his personal property lost in the wreck, and amounting to $1,257.18, because the loss of the vessel, and therefore of his property which was thereon, was 11268-VOL 2—25

not without fault or negligence on the part of the claimant," such freedom from fault or negligence being necessary to a reimbursement under said act. You have therefore disallowed Lieutenant Lyman's claim. Although this legal construction of the act is correct, yet from an examination of the evidence presented with the claim, I am of the opinion that the same should be allowed on the facts upon which Lieutenant Lyman's claim is founded, as they do not show such fault or negligence as is contemplated by the act. I have, therefore, in accordance with the provisions of the first clause of section 8 of the act of July 31, 1894, reviewed said account upon my own motion, the reasons for which action are given in the following opinion.

The provisions of the act applicable to this claim are as follows:

"That the proper accounting officers of the Treasury be, and they are hereby, authorized and directed to examine into, ascertain, and determine the value of the private property belonging to officers, petty officers, seamen, and others in the naval service of the United States which has been or may hereafter be lost and destroyed in the naval service by shipwreck or other marine disaster, under the following circum

stances:

"First. When such loss or destruction was without fault or negligence on the part of the claimant."

The facts surrounding the wreck of the Kearsarge were at the time carefully investigated by the naval authorities. The commander of the vessel, Oscar F. Heyerman, and the navigator, Charles H. Lyman, the claimant in this case, were both tried by general court-martial, convened at the New York Navy Yard, on March 22, 1894, and both found guilty of infractions of naval law and regulations, for which they were duly punished, in accordance with the sentences imposed. The findings of this court-martial will be more particularly discussed later in this opinion. The claimant has submitted a certified copy of the proceedings in his court-martial case, which you did not have the advantage of having when the case was before you, and from this, as well as from the other records in the case, the story of this interesting and mysterious wreck can be derived. It appears that the Kearsarge, under Commander Heyerman, sailed from Port au Prince, Haiti, a few days prior to the wreck, making passage for Bluefields, Nicaragua. In taking the most direct route the vessel neces

sarily passed in the vicinity of Roncador Bank, a dangerous reef in the Caribbean Sea, surrounded by strong and treacherous currents.

It appears from the testimony submitted that the navigator reported that the distance of the ship from Roncador Bank at 8 o'clock in the morning was 70 miles, at 12 o'clock 40 miles, and at 4 o'clock 16 miles, and there is no evidence to show that these reports were not accurate, nor are they directly questioned. The captain, between 10 and 11 on the morning of the fatal day, set the course W. S. W. & W., which, when laid off upon the charts, was calculated to clear the northern end of the reef by 3 or 4 miles, making no allowance for the current, which as indicated by the charts would have carried the vessel under ordinary circumstances at least 4 miles farther to the north and away from the reef. The vessel at this time was under sail, and the navigator, about 1 o'clock, appreciating the importance of sighting the reef before changing the course more to the south and proceeding upon a direct course to Bluefields, and knowing that darkness would fall about half past 6, advised the captain that under the rate of speed the ship was then making it was doubtful whether the reef could be sighted before dark, and urged that steam should be raised at once in order that this most desirable object should be attained. Apparently the captain did not appreciate the importance of so doing, for it was not until 3 o'clock that he gave the order to raise steam and not until 4 o'clock that the ship was under steam. About sunset, the ship having run the distance estimated from the 4 o'clock position, which should have brought her opposite the reef, and the reef not being sighted (although the assistant to the navigator, obtaining an estimated range of vision of 10 miles from the masthead, had been previously sent aloft with a glass to determine the position of the reef if it could be seen), the captain on his own responsibility altered his course to one almost due west, in order that he might safely clear the reef. Both the captain and navigator believed that they had passed to the north of Roncador at 6.30, but in fact about twenty minutes later they ran upon it. How this accident could have happened is not apparent to the lay mind from a reading of the testimony. Theoretically the observations taken were correct and the estimated run upon the course laid should have carried the vessel certainly clear of the reef before darkness

fell. It is not unlikely that owing to some special causes the currents on that particular day or at that season were not in the direction nor of the force laid down in the charts, and that thus the historic ship, about which so much national sentiment has entwined itself, was lost, and these officers subjected to the censure of a nation.

The court-martial decided that Lieutenant Lyman was guilty of neglect of duty under the first, second, and third specifications of charge 1, and that he was guilty of charge 2, "culpable inefficiency in the performance of duty," except that portion of the charge which read:

"In consequence of which the said steamer Kearsarge was, at about six hours and fifty minutes post meridian on the day above mentioned, run upon Roncador Bank, in the Caribbean Sea, in about latitude thirteen degrees thirty-four minutes north and longitude eighty degrees five minutes west, and was stranded."

The proceedings before the court-martial were in the nature of an investigation of an offense against the laws of the Navy, and the purpose was the punishment and discipline of the offender. The application of the claimant now is for reimbursement before this Department in proceedings to recover under a civil statute which has no connection whatever with the purpose of the court-martial. The findings of the courtmartial in Lieutenant Lyman's Case, and also in Commander Heyerman's Case, as bearing upon the question of negligence may be properly considered.

The claimant, as navigator of the ship, was charged with the following duties (United States Navy Regulations, 1893):

"ARTICLE 558. 1. When under way, he shall report in writing to the captain the position of the ship at 8 a. m., at 12 m., and at 8 p. m., and at such other times as the captain may require.

"2. He shall, at any time, take such observations or make such calculations concerning the position of the ship as the captain may require.

"ARTICLE 559. When the ship is under way, and the weather permits, he shall each day ascertain by observation the error of the standard binnacle compasses, and report the result in writing to the captain.

"ARTICLE 562. He shall, when the ship is approaching land or shoals, or entering port, give his careful attention to the course of the ship and the depth of water, and shall promptly report to the captain any suspicion of approaching danger."