#### BRIGHT’S CASE. Jesse D. Bright *v.*The United States. Eusebius Hutchings et al v. The Same.

*On the Proofs.*

*The claim is transmitted to this court for adjudication by the Secretary of War, imdei'the*Act June 26,1868, (15 *Stat. L:,*75 § 7,) *upon the ground that two adverse parties claim the rent due for premises occupied by the Government as tenant. One of these parties appears in court and files his petition. The other fails to appear, and a citation is issned requiring him to come in or be barred of his cause of action. JSe appears to question the jurisdiction of the court,*(6 *C. Cls. S., p.*118,) *and does not prosecute his claim. The Government now appears by counsel, but does not interpose a defense. On these facts the claimant, who appears, contends that he is entitled to judgment by default, without offering any evidence whatever.*

*327Where a claim is transmitted by an Executive Department under the *Act June*25, 1868, (15 Stat. L., 75, *§*7,) upon the ground that there are two adverse parties seeking to recover rent for premises occupied by the Government as tenant, and one of these parties appears and prosecutes his claim, and the other fails to do so, and the Government interposes no defense, the party prosecuting cannot take judgment by default. It is not necessary for him to negative the conflicting claim of the adverse party, hot it is necessary for him to show by legal proof a right of recovery *prima faeie*in himself.

*The Reporters’*statement of tbe case.

The court found the following facts :

I. The defendants, the United States, did not interpose any defense upon the trial, but appeared by counsel, and conceded that they had held and occupied the premises, and that the rent alleged to be due in the petition remains due either to the claimant Jesse D. Bright, or to the claimants Eusebius Hutch-ings and Alfred Harris.

II. The parties, Hutchings and Harris, although notified that their claim had been transmitted for adjudication to this court by the Secretary of War and duly cited to appear and prosecute it, as by reference to the records of this court will more fully appear, failed to prosecute their claim to the rent conceded by the defendants to -be due, or contest that of the claimant Jesse D. Bright.

III. The claimant Jesse D. Bright duly appeared and produced and proved, to the satisfaction of the court, the execution' of the agreement between himself and Hutchings and Harris, annexed to this petition; and he also produced and proved the lease from Hutchings and Harris to the defendants, the United States, also described in the petition.

*Mr. James Hughes*for the claimant Jesse D. Bright.

Nott, J.,

delivered the opinion of the court:

The claim in this case was transmitted to this court for adjudication by the Secretary of War under the *Act 25th June,*1868, (15 Stat. L., p. 75, § 7.) The statement of the Secretary shows that the Government occupied certain premises, and that a certain amount of rent is due, but whether to the claimant; Jesse D. Bright, or to the claimants, Eusebius Hutchings and Alfred Harris, he was unable to determine.

*328The claimant, Jesse D. Bright, thereupon appeared in this court, filed his petition, and proceeded to prosecute his claim. Hutchings and Harris failed to appear, and a citation was issued and served upon them requiring them to come in and file their petition or be barred of their right of action. They did appear, but only to question *in limine*the jurisdiction of the court, and not to prosecute their claim, (6 C. Cls. R., p, 118.) The Government has appeared by counsel, not to interpose a defense, but to reiterate through the Attorney-General that the rent is due to the rightful party. On these facts it is contended by Mr. Bright’s counsel that he is entitled to judgement by default without offering any evidence whatever.

We are of the opinion that the transmission of the claim by the Secretary of War admits only the occupancy, the rent accrued, and the amount due. It is not .conceded in legal effect that the rent is due to Mr. Bright, nor does a legal inference arise from a failure of the adverse claimants to appear and prosecute. On the one hand it is not necessary for him to negative the conflicting claim of an adverse party; on the other it is necessary for him to present the legal proof, which, in connection with the Government’s admission, will show a right of recovery, *prima*facie, in himself. The case must be remanded accordingly.

Subsequently the claimant produced and put in evidence certain documentary proofs, viz, the agreement between himself and Hutchings and Harris, by authority of which they leased the premises to the Government, and their lease to the Government under which the premises were occupied, and upon which the rent in suit accrued. These were thought to make out a case.

The judgment of the court was that the claimant, Jesse D. Bright, recover of the defendants $3,427.10, the amount of rent admitted to be due, and that'the claim of the claimants, Euse-bius Hutchings and Alfred Harris, be dismissed.