not over one thousand dollars, and the jurisdiction of the circuit court to cases over that amount up to ten thousand dollars. Then paragraph 20, § 24, of the Judicial Code, gives jurisdiction to the district court up to ten thousand dollars. The theory of this act is to give the litigant an opportunity of asserting his claim against the government in a more convenient forum than the court of claims, which may be far distant from him.

SAME THE SUBJECTS OF JURISDICTION

74. The act gives jurisdiction on claims founded on the Constitution or laws of the United States, upon contracts, express or implied, in cases not sounding in tort, except in war claims and claims adversely acted upon by other government agencies authorized to act. Claims for pensions, also, are excepted from the general class of jurisdiction.

The clause of this section on which jurisdiction is most commonly based is the clause giving jurisdiction for claims founded "upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect to which claims the party would be entitled to redress against the United States either in a court of law, equity or admiralty if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government of the United States against any claimant against the government in said court." This includes only money demands. It does not give any of the courts jurisdiction in equity to compel the issue and delivery of a patent for public lands, nor to cancel a judgment lien in favor of the United States illegally placed upon an

individual's land by a government officer, nor to decree specific performance.2

Claims for a Tort

Claims for a tort are expressly excluded, and this regardless of the mere form of pleading which the plaintiff may adopt. For instance, a suit by a person who, while in a government building, is injured by the fall of a government elevator, cannot be sustained, though allegations may be made that there was a promise of the government to carry the plaintiff safely. In order to sustain the jurisdiction on the ground of an implied contract, there must be some element of contract in the case. For instance, suit may be brought for the value of property taken or used by the government without compensation, where no adverse title to the property is set up by the government, for there is an implied contract with the government to pay for property so taken or used.*

On the other hand, when the claimant's right to the property is denied, and the government takes it under the assertion of a right to use it, then the action is in tort, and cannot be sustained on the theory of an action for use and occupation; nor can it be made an action on contract by merely alleging an implied promise to pay under such circumstances."

2 U. S. v. Jones, 131 U. S. 1, 9 Sup. Ct. 669, 33 L. Ed. 90; Holmes v. U. S. (D. C.) 78 Fed. 513; District of Columbia v. Barnes, 197 U. S. 146, 25 Sup. Ct. 401, 49 L. Ed. 699; Plain v. Horne (C. C.) 196 Fed. 582. See "Courts," Dec. Dig. (Key-No.) §§ 426, 449; Cent. Dig. §§ 1131, 1163-1169.

3 BIGBY v. U. S., 188 U. S. 440, 23 Sup. Ct. 468, 47 L. Ed. 519. See "Courts," Dec. Dig. (Key-No.) § 426; "United States," Dec. Dig. (Key-No.) $ 69.

4 U. S. v. Great Falls Mfg. Co., 112 U. S. 645, 5 Sup. Ct. 306, 28 L. Ed. 846; U. S. v. Buffalo Pitts Co., 193 Fed. 905, 114 C. C. A. 119. See "Courts," Dec. Dig. (Key-No.) § 426; "United States," Dec. Dig. (Key-No.) § 69.

Hill v. U. S., 149 U. S. 593, 13 Sup. Ct. 1011, 37 L. Ed. 862; Ribas y Hijo v. U. S., 194 U. S. 315, 24 Sup. Ct. 727, 48 L. Ed. 994; Cole

This distinction is illustrated by the decisions in reference to the use of a patent by the government. Where the use is with the consent of the patentee, a promise to pay is implied, and suit is maintainable; but, where the use is without the consent of the patentee, a suit by the patentee is in tort, and not sustainable, though he may choose to frame his pleadings on the theory of an implied contract. And a suit for an injury equivalent to a taking of the property without compensation, where the government does not deny the title, is within the statute. A suit by a contractor for extra work, and damages caused by the interference of a government agent during the work-the contractor having a contract with the government—is sustainable as an action of contract.8 So as to a suit for

salvage to government property."

In suits in the court of claims it had been held that the government could plead a counterclaim and recover judgment on it.10 The Judicial Code extends this right to the government as to any cross-demand, no matter how irrelevant to the original claim.

Under the original act it was held that these suits must

man v. U. S., 181 Fed. 599. See "United States," Dec. Dig. (Key-No.) § 127; Cent. Dig. § 116.

6 U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. 104, 32 L. Ed. 442; Schillinger v. U. S., 155 U. S. 163, 15 Sup. Ct. 85, 39 L. Ed. 108; U. S. v. Société Anonyme Des Anciens Établissements Cail, 224 U. S. 309, 32 Sup. Ct. 479, 56 L. Ed. 778. See "United States," Dec. Dig. (Key-No.) § 97; Cent. Dig. § 76.

7 U. S. v. LYNAH, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539. See "Courts," Dec. Dig. (Key-No.) §§ 415, 426.

8 Bowe v. U. S. (C. C.) 42 Fed. 761. See "United States," Dec. Dig. (Key-No.) § 95; Cent. Dig. § 74.

9 U. S. v. Cornell Steamboat Co., 202 U. S. 184, 26 Sup. Ct. 648, 50 L. Ed. 987; Hartford & N. Y. Transp. Co. v. U. S. (C. C.) 138 Fed. 618; U. S. v. Morgan, 99 Fed. 570, 39 C. C. A. 653. See "Courts," Dec. Dig. (Key-No.) §§ 415, 426.

10 Steele v. U. S., 113 U. S. 128, 5 Sup. Ct. 396, 28 L. Ed. 952; U. S. v. Burchard, 125 U. S. 176, 8 Sup. Ct. 832, 31 L. Ed. 662. See "United States," Dec. Dig. (Key-No.) § 130; Cent. Dig. § 118.

be brought within six years after the right of action accrues, but the additional time allowed by the saving clause of section 1069 11 of the United States Revised Statutes to persons beyond seas and under disability is also to be taken into account.12 This construction has been embodied in the Judicial Code, in section 24, par. 20.

Concurrent Jurisdiction

The jurisdiction of the district court within the pecuniary limits above mentioned is coincident with the court of claims, except that it cannot take cognizance of cases brought to recover fees, salary, or compensation for official services of officers of the United States, or their assigns; the idea probably being that suits of this sort can best be asserted at the seat of government, where the court of claims is located.

Claims by an Alien

It is an interesting question whether an alien can sue under this act in the district court. In favor of his right to sue, it may be said that he certainly has the right to sue in the court of claims, provided his own country permits a similar privilege to citizens of this country. This right is given by section 1068 of the Revised Statutes. Then the act gives the district court concurrent jurisdiction with the court of claims, excepting only suits by officers. If the act stopped here, the right of an alien to sue would be clear, but the fifth section of the original act (continued in force by section 297 of the Judicial Code) requires the petition to be filed "in the district where the plaintiff resides." A resident alien, therefore, could undoubtedly sue, but whether an alien who merely comes into the United States for a temporary purpose can sue, and, if so, where, is a more difficult question. For instance, there have been some

11 U. S. Comp. St. 1901, p. 740.

12 U. S. v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 41 L. Ed. 1130. See "Limitation of Actions," Dec. Dig. (Key-No.) § 3.

cases of British captains towing in government light-ships, and then claiming salvage upon them. Such aliens resided in no district, and yet public policy would seem to require that they should be encouraged to render such salvage services. Such a case was that of The Viola,1 13 but the question of jurisdiction was not raised in the case. In any event, it would seem clear that if such a suit is brought, and the United States by an authorized officer appears and defends on the merits, the court would have jurisdiction of the case; the question of the district in which to sue being a question of personal jurisdiction, and not jurisdiction over the subject-matter, and therefore one which can be waived.

SAME THE PROCEDURE

75. A suit under this act is instituted by filing a petition in the proper court duly verified, and setting out the full name and residence of the plaintiff, the nature of his claim, and a succinct statement of his

case.

A copy of this petition must be served upon the district attorney of the United States in the district where the suit is brought, and another copy must be mailed by registered letter to the Attorney General, and proof of this fact, by affidavit of the service and mailing of the letter, must be filed with the clerk of the court.

The district attorney must then appear within sixty days after the service and make defense, unless the court gives him further time. But no judgment by default can be taken in case he does not. It is still necessary to prove the claim to the satisfaction of the court. The trial is by the court

18 (C. C.) 52 Fed. 172; 55 Fed. 829, 5 C. C. A. 283. See, also, New York & O. S. S. Co. v. U. S. (D. C.) 202 Fed. 311; Reid Wrecking Co. v. U. S. (D. C.) 202 Fed. 315. See "Aliens," Dec. Dig. (Key-No.) § 16; "Courts," Dec. Dig. (Key-No.) §§ 268, 426.