#### CROSS' CASE. Alexander Cross, appellant, *v.*The United States, appellees.

(5 Court of Claims R., p. 88; 14 Wallace R., p. 479.)

*On the claimants Appeal.*

*In*1856 *the clamant brings Ids suit to recover certain rents due him on a lease made by one Saffarans to the United States, and assigned to him by Saffarams. He fails to prove such a transfer of the lease as would enable him to sustain a suit for the rents. The Court of Claims, tinder its former organization,malees an adverse report on the claim to Congress. Congress pass a joint resolution, referring back the case to the court and authorizing it to render judgment for such amount as may be found equitably due to the claimant, notwithstanding the defect in the assignment of the lease, provided the claimant file a bond with the Secretary of the Treasury to indemnify the United States against any claim which may be made by the heirs of Saffarans. Under this resolution the claimant recovers judgment for the rent due up to the time of bringing suit. The present suit is brought to recover rent which accrued subsequently. The court below decides that the joint resolution referring bade the case cannot apply to any other than the cause then remanded, and cannot have any operation and effect beyond the case to which it specifically related. Judgment for the defendants. The claimant appeals.*

Í. A private act should not he construed to mean (without a special declaration to that effect) that Congress intended to legislate in a manner that would enable a creditor of the Government to recover only a part of his claim when the whole of it is deemed meritorious by the court authorized to try the case. Therefore a private act which provides that a cause be remanded to the Court of Claims, and that *“if upon the further hearing of said*causa *it shall appear that the said petitioner is the equitable owner of said lease, and in justice and equity entitled to the said rents, if any, due thereon from the United States, the said court shall be authorized to render judgment therefor in his favor, notwithstanding any technical defeat in the assignment of said lease,”*is a waiver of a technical defect, and is not limited to the particular suit remanded, but extends to the entire controversy respecting the lease, and may be set up in a second suit; for rents subsequently accrued.

*2II. In covenant for non-payment of rent payable at different times, a new . action lies against tlie Government in the Court of Claims as often as tlie respective sums become ijayable, and the lessor is not bound to amend bis petition, before going to trial, so as to include payments which have become due subsequent to the bringing of the action.

*The Reporters’*statement of the case:

The claimant brought his action in the court below for a balance of rent, and set up the following private act:

Whereas Alexander Cross heretofore filed his petition in the Court of Claims of the United States, praying relief on account , of certain rents alleged to be due from the United States to Mm as assignee of one Daniel Saffarans, by virtue of a certain alleged contract of lease between the said Daniel Saffarans (who is now deceased) and the United States j and

Whereas the said Court of Claims, on the twenty-fourth of January, eighteen hundred and fifty-nine, rendered a decision adverse to the prayer of said petition, on the sole ground of an alleged technical defect in the assignment of said lease from the said Daniel Saffarans to the said petitioner: Now, therefore,

*Be it resolved by the Senate and House of Representatives of the United States of Amerieain Gongress assembled,*That the said cause be remanded to said Court of Claims for a further hearing, upon the testimony heretofore filed therein, and such further testimony as either party may take and file pursuant to the rules of said court ; and if, upon the further hearing of said cause, it shall appear that the said petitioner is the equitable owner of said lease, and in justice and equity entitled to the rents (if any) due thereon from the United States, the said court shall be authorized to render judgment therefor in his favor, notwithstanding any technical defect in the assignment of said lease: *Provided,*That no money shall be paid out of the Treasury upon any judgment which may be rendered in favor of the petitioner in said cause, until he shall have filed with the Secretary of the Treasury a bond, with ample security, iu such sum as will fully indemnify the United States against any demand which may be set up and established by or on behalf of the heirs or representatives of the said Daniel Saffarans, deceased, under or by virtue of said contract or lease.

*3Thereupon the defendants put in the following plea :

And the said defendants, by tbeir Attorney-General, now come and say that the claimant should not have or maintain his action against the defendants, because at the time of the filing of the supplemental petition in the former cause, mentioned therein, the whole of said rent had then already become due and payable, and should have been included and claimed in said supplemental petition, and in default thereof the same is barred by said former recovery; and defendants therefore ask judgment.

The court below found the following facts in the case :

1. That in the former action between the parties, brought under the *Joint Resolution of July*2, 1864, by the supplemental petition of the claimant, filed July, 1864, this court found that the claimant had given the security in said joint resolution specified, and that he was, within the meaning of the joint resolution, the equitable owner of said lease, and in justice and equity entitled, to the rents then claimed, accruing from the 13th day of August, 1853, to the 14th day of November, 1856, at $1,500 per month, and amounting to the sum of $58,500, less the sum of $14,893.37, credits allowed the United States, leaving the balance due the claimant $43,607.63, for which judgment was rendered, and has been paid.

2. The rents under the said lease for which the present suit is brought,accruingfromthel4thNovember, 1856,up'to the 14th January, 1861, at $1,500 per month, amounting to the sum of $75,000, have not been paid by the defendants, but there is due to them a credit specified in the account annexed to the claimant’s petition, of $5,515.19, leaving unpaid a balance of $69,515.01.

3. That, at the time said claim and every part and parcel thereof accrued, the said claimant was beyond seas, and without the limits and jurisdiction of the United States, and did not return or come within the limits or jurisdiction of the United States until within less than three years from the time of filing his said petition.

And the court decides, as a conclusion of law, that the power and authority conferred upon the court by said joint resolution had been exhausted by the former judgment rendered as aforesaid in said suit, and that this suit could not be maintained.

*4*Mr. J. J. Coombs*for the claimant, appellant:

The clause of the joint resolution which authorizes the Court of Claims to render judgment in favor of the claimant for the rents that may be found due him in “justice and equity,” refers no more to rents accruing prior to the filing of his original petition, than to the rents accruing since. Surely, it is only by a hypereritically strict construction that any different effect can be given to it. The claim for rents' accruing before and after the commencement of the first suit stands in all respects precisely upon the same footing. The resolution expressly authorizes the Court of Claims to render judgment in favor of the claimant for *the rents*found due from the United States *on the lease,*“ if it shall appear that the said petitioner is the equitable owner of said lease, and in justice and equity entitled” to said rents. It does not authorize said court to render judgment for a *part,*only, of the rents found due on said lease, nor does it waive the alleged technical defect in the assignment as to a *part,*only, of claimant’s demand. There is no word in the resolution thus limiting these clauses, and surely there is nothing in the nature of the case to justify any inference that any such limitation was intended. On the contrary, nothing short of the construction which we claim can give the resolution any other effect than a manifestly preposterous and absurd one.

But if there is any room to doubt, from the language of the body of the resolution, whether Congress intended to waive the alleged technical defect in the assignment, as to the whole of the rents found due the claimant in “justice and equity,” or only as to a small, portion thereof, the *proviso*certainly removes it. For why should Congress require the claimant to indemnify the Government by “ a bond with ample security ” against *any*demand which may be set up and established by the heirs or representatives of the said Daniel Saffarans, deceased, *under or by virtue of said contract or lease,*if it was intended only to authorize him to recover one-third of the rent due1?

We respectfully submit that the construction given by the Court of Claims to the joint resolution is utterly preposterous, and one that never would have received the sanction of that enlightened court, had the question been made by the pleadings or at bar.

It can scarcely be necessary to notice defendant’s plea of *former*recovery, and the demurrer thereto.

*5Tlie only former suit that has ever been brought for rents accruing upon said lease, was commenced in November, 1856, for rents which had *then*accrued. When the joint resolution passed, the claimants filed a supplemental petition for the sole purpose of setting up and claiming the benefit of said joint resolution. Said supplemental petition in no sense made a new case, and could not, without a violation of the plainest principles of pleading and practice, have been made to embrace any demand not due at tlie time of filing the original petition. .

There is no rule of law better settled than the rule that in a common-law action no judgment can be rendered for any debt not due at the time of the commencement of the suit. So rigidly was this rule enforced in England prior to Lord Mansfield’s time, that even interest accruing on a bond during the pend-ency of the suit could not be included in the judgment. But in *liobinson*v. Bland, (2 Burrows, 1087,) the Court of King’s Bench abolished this absurd rule as to accruing interest, and Lord Mansfield laid down the rule in these words: *“*When a *new*action *may*be *brought,*and a *satisfaction obtained, thereupon,*for any duties or demands which have arisen since the commencement of the depending suit, *that*duty or demand shall *not*be included in the judgment upon the former action. As in *covenant*for non-payment of rent, or of an annuity payable at different times, you may bring a *new*action *toties quoties,*as often as the resxiective sums become due and payable. So in *trespass*and in *tort;*new actions may be brought as often as new injuries and wrongs are repeated, and therefore damages shall be assessed only up to the time complained of.”

*Mr. Assistant Attorney-General Rill*for the United States, ap-pellees :

The joint resolution only applied to the case of the first petition of the appellant in the Court of Claims. This is shown by the preamble, “ Whereas Alexander 'Cross *heretofore*filed his *petition*in the Court of Claims of the United States, praying relief on account of certain rents alleged to be due from the United States to himand “ whereas the said Court of Claims rendered its decision adverse to the prayer of *said petition*now therefore u *Be it resolved,*&c., That the *said, cause*be remanded to said Court of Claims for *& further*hearing, upon *6the testimony heretofore filed therein, and such further testimony as either party may take and file pursuant to the rules of said court.”

This language would seem clearly to refer to the cause of action covered by the first petition, and to none other; and as the Court of Claims could not give relief except so far as it was specially authorized by this act of Congress, its powers must be strictly confined within the language and limits of that act.

But if the resolution is broad enough to cover any claim which the appellant had against the United States finder the lease from Saffarans, then the former judgment is a bar to any future recovery by him for the same cause of action. The resolution certainly did not contemplate more than one action, and when the appellant filed 'his supplemental petition, the rents for which he now sues were due and might have been included by him in that suit. As he did not elect to do so, but brought a suit for a portion only of his claim, he has lost by his laches any right which he might have had under the resolution to recover the amount of the rents which he had negligently omitted to include in his petition.

Mr. Justice Davis

delivered the opinion of the court:

The only question in this case relates to the proper construction of the *Joint Resolution July*2, 1864, (13 Stat. L., p. 591,) for the relief of Alexander Cross. The action of Congress was based on the following state of facts: One Daniel Saffarans, in 1851, according to the forms of law, leased to the United States, for a period of ten years, at a certain monthly rent, a warehouse in San Francisco. The claimant, Cross, advanced the money to complete the building, and was compelled for his own protection to purchase the property and the contract of lease. The lease was assigned to him, and the warehouse occupied by the Government for a period of three years, when Mr. Guthrie, the Secretary of the Treasury, against his written protest, rescinded the contract.

On the 15th of November, 1856, Cross petitioned the Court of Claims for relief, but failed to obtain it, on the ground that the assignment, of the lease was defective and insufficient to vest in him a legal title to the accruing rents. This adverse *7decision, in conformity with the law at that time, was reported to Congress, and while the proceeding was pending there the joint resolution referred to was passed.

This resolution, after reciting that the decision in question was rendered on the sole ground of an alleged technical defect in the assignment of the lease, directs that the case be remanded to the Court of Claims for a further hearing, with authority to render judgment for the petitioner if he were found to be the equitable owner of the lease, notwithstanding the defective assignment, on condition that he secured the Government by a proper indemnifying bond against any claim which the heirs or representatives of Saffarans (who was then deceased) should make on account of the “ *contract or leaseP*In accordance with these directions Cross, in July, 1864, by a supplemental petition, asked the Court of Claims to rehear the cause and give him judgment for the instalments of rent claimed in his original petition, embracing the periods of time between the 14th day of August, 1853, and the 14th day of November, 1856. This was done, and the present action was brought, two years afterwards, to recover the instalments of rent which were not included in the first suit.

The court below held that this suit could not be maintained because the power and authority conferred upon it by the joint resolution had been exhausted when it reheard the cause and rendered judgment.

Was this ruling correct ? To uphold it would be. to take a narrow view of the legislative intention, and give substantial effect to the technical defenses which have distinguished this, litigation. There is no defense now on the merits, nor was there when the case went to Congress. It went there, not because the United States was not bound by the covenants of the lease, but for the reason that, in the opinion of the Court of Claims, Cross had not the legal right to enforce the obligation. Saffarans had undertaken to assign the lease to Cross, and no question was made as to his ownership until the Secretary of the Treasury attempted to rescind the contract. Then it was discovered that the assignment lacked legal formality, and the Government availed itself of this defense, and this only, in the Court of Claims to defeat the action. In this state of the case Congress was called upon to act.

The technical defect in the mode of assignment was the only *8obstacle encountered by Cross in tbe prosecution of bis claim, yet while it remained it was effectual to prevent a recovery. To remove it and allow a trial on-the merits required the assent of Congress, and this was given. That tbe waiver by Congress of tbe right of tbe United States to make this defense was not limited to any particular suit, but was extended to tbe entire controversy respecting the lease, seems clear enough from tbe language of tbe resolution, itself. Tbe Court of Claims was told if it found Cross to be the equitable owner of tbe lease, and in justice and equity entitled to tbe rents (if any) due thereon [from tbe United States, to render judgment in bis favor, notwithstanding any technical defect in tbe assignment of the lease. And to leave no room for doubt on tbe subject tbe court was directed, further, to take bond from Cross to indemnify the Government *“ against any demand which may be set up and established by or on behalf of the heirs or representatives of Saffarans under or by virtue of said contract or lease?*Why the extent of this requirement if the waiver was only applicable to the rents in controversy in the proceeding then pending before Congress'? We cannot suppose, without an express declaration to that effect, that Congress intended to legislate in a manner that would enable a creditor of tbe Government to obtain only a *part*of his claim when tbe *whole*of it was deemed by tbe court that tried tbe case to be meritorious.

It is true tbe lease was at an end when Congress acted and tbe court reheard tbe cause, and Cross could by proper amendment to bis petition have embraced also that portion of bis demand for which he now sues; and that would have been tbe proper course for him to have pursued, but be was not compelled to take it. In covenant for non-payment of rent, payable at different times, a new action lies as often as tbe respective sums become due and payable. As this suit is for instalments of rent not due when tbe first suit was instituted, and as they were not included in it in any stage of the proceeding, tbe plea of former recovery has no application.

On the finding of facts by the court below judgment should have been rendered for tbe claimant for $09,515.01.

It is, therefore, ordered that the judgment be reversed and the cause remanded to tbe Court of Claims, with directions to enter judgment for that sum.