1st Session.

SAMUEL KEEP.

APRIL 15, 1830.

Mr. CRANE, from the Committee of Claims, made the following

REPORT:

The Committee of Claims, to whom was referred the petition of Samuel Keep, report:

That, on the 8th of September, 1806, the Navy Agent at Boston, acting on behalf of the United States' Board of Navy Commissioners, entered into a contract with the petitioner, that the latter should superintend the construction of a wharf or pier, and of such houses and structures, at Pensacola, as the Navy Board should direct, and should employ and take with him to Pensacola, by the 1st of October then next ensuing, eight master masons and ten skilful wharf builders, and remain at that station with his said workmen two years, if required. For these services it was agreed the petitioner should receive $2,000 per annum, or at the rate of $2,000 per annum for the time he should be engaged and occupied according to the agreement; and also, for each and every mason and wharf builder, engaged as aforesaid by him, $2 50 for each working day.

It satisfactorily appears, from the testimony adduced, that the petitioner did employ and bring with him to Pensacola, within the time limited, the stipulated number of competent workmen; that he made preparations to continue in the service at Pensacola for the period mentioned in the agreement; that, among those preparations, were the construction of a house for the accommodation of his workmen, and the transportation of materials and provisions from Boston to Pensacola. It further appears, that the work done at the Navy Yard at Pensacola for the United States, under his superintendence, was performed in a good and workman-like manner, and that, during the period he was employed as Superintendent, the contract was faithfully complied with on his part. On his arrival at Pensacola with his workmen, the officers of the Navy Yard were not in a state of readiness to allow of his commencing any of the works which he had contracted to do, and the men were for some time employed in digging sand; this labor, so different from that which they had engaged to perform, and the representations of the commanding officer, that the petitioner improperly withheld from them a part of the pay which he received from the United States for their labor, excited discontent and insubordination among them, and he was compelled to procure other workmen, at considerable expense. By an order of the Navy Commissioners, the Purser at that station was directed to pay, and did actully pay directly to the workmen themselves, several sums, at rates different

from those at which they had contracted with the petitioner. On the 7th June, 1827, the petitioner was dismissed, by order of the Navy Commissioners. The expense which the petitioner incurred in procuring other workmen from Boston and New Orleans, and other claims growing directly out of the violation of his contract, have been partiallya llowed and paid, under the direction of the former Secretary of the Navy. It also appears, that the claims of the petitioner for allowances covering the costs of transporting the first set of mechanics from Boston to Pensacola, the costs of the house erected for their accommodation, the salary and board of his clerks, and his expenses while necessarily detained at Washington, in adjusting his accounts, were sustained by the former Secretary of the Navy; but, in consequence of the illness of the Secretary, his decision was not carried into effect. The present Fourth Auditor, in his report on the case of the petitioner, expresses his opinion that the petitioner is equitably entitled to those allowances, but that an act of Congress is necessary to authorize an equitable adjustment of his claims. The committee concur in the opinion, that the petitioner is entitled in equity to relief beyond the sum which has been allowed and paid to him, and which falls far short of compensating him for the losses which he has sustained. They do not, however, consider that the claim for his expenses, while detained at Washington, in the settlement of his accounts, is justly chargeable to the Government. If allowed in his case, the committee can see no reason why a similar claim may not be made by every person having accounts to settle, growing out of a contract made with the Agents of the Governmen'. The committee report a bill authorizing the settlement of the claims of the petitioner upon the principles of justice and equity.

ROBERT SMART

APRIL 15, 1830.

Mr. McINTIRE, from the Committee of Claims, to which had been referred the case of Robert Smart, made the following

REPORT:

The Committee of Claims, to which was referred the petition of Robert Smart, report:

That the petitioner claims compensation for a quantity of lumber taken from him against his will, by order of the Quartermaster General of General Harrison's army at Detroit, in October, 1813, for the use of the United States, which lumber he values at least at $160; he also asks compensation for a horse forcibly taken from him, for the use of said army, valued by him at $100; he claims also a further compensation, for another quantity of boards taken from his fences and buildings in Detroit, for the use of said army, and by order of Col. McCloskey, the Quartermaster General of said army, appraised by two men at ninety dollars.

An account accompanies his petition, extending the first item in his claim to $375 for plank, beside boards and shingles left blank; as to quantity and amount, not carried out. The other items in the account are the same as in petition.

The committee made inquiry of the Third Auditor for any information in his office affecting the claim, and received his answer, under date of Feb. 1, 1830, by which, and the copies accompanying it, it appears that the petitioner, in March, 1815, forwarded his claim to Mr. Lear, the late Accountant, which claim was for lumber, and amounted to $135 only, and was accompanied by the deposition of James Conner. By the copy of Mr. Lear's answer, it appears payment was refused, because the lumber was taken at Sandwich, in Upper Canada, the enemy's country.

The committee is of opinion, that, considering the state of the country at that time, both sides of the strait having but recently been in possession of the enemy, and then in possession of the United States, no objection could be made to pay the petitioner, one of our own citizens, for the lumber taken for the necessary use of the army, merely from the circumstance that it happened to lie on the Canada side.

The depositions originally accompanying the petition, did not very distinctly show what was included in each item in his account, which, with other circumstances, raised several queries, whether the whole lumber was taken in Canada? Whether the account presented in 1815, embraced both

items in his petition, and, if not, why it did not? Whether Morass, who took the lumber, by order of the Quartermaster General, did not furnish it as his own, and receive pay for it?

The petitioner was made acquainted by his friends with these difficulties, and a report has been delayed for his explanations and further proofs. These have been furnished by his own explanatory affidavit, and that of others.

On the 30th of March, 1820, the petitioner had his claim presented to Congress by resolution, on which an unfavorable report was made April 5, 1820. On recurrence to the files, two papers are found: one in relation to the horse, and the other to the boards and plank taken from his garden fence, and some shed or building charged in his account, and sworn to as consisting of 3,000 feet of boards, at $30 per M. With this last account, is the deposition of Mr. Watson, who represents himself as late an Ensign in the 26th regiment of the United States' Infantry, in which he deposes, that he was present when Lieut. Crooks, of the 28th regiment, and some soldiers, took from the petitioner's fence and building in Detroit, a large quantity of boards and planks which he says Lieut. Crooks afterwards informed him were made use of for coffins for deceased soldiers of the 28th regiment.

On the paper on which is the charge for the horse, are four depositions to prove the loss and value of the horse; and that the horse was in the possession of a soldier in the army under General McArthur, one of which only will be noticed, which, in the opinion of the committee, is decisive against the claim. It is the deposition of John Cramer, who represents himself to have been a private soldier in Captain Murray's company of mounted militia, in General McArthur's command, in an expedition to Burlington Heights, in 1814; that, about ten miles above Detroit, one Frank Monroe, a soldier of the same company, brought into camp a horse he knew to be the petitioner's; that he rode him in that expedition, and that he verily believes said Monroe took said horse with him to Ohio. This evidence, corroborated as it is by others, shews that the horse was unlawfully taken by a militia private soldier. The United States are not bound to indemnify the petitioner for a depredation of this character.

Accompanying the present petition, are the depositions of Wm. B. Torrence, Peter J. Desnoyes, Ignace Morass, Oliver W. Miller, and James Conner. Governor Cass certifies to the credibility of these witnesses, and also to some general knowledge of the facts they testify to; not from personal knowledge of the particulars, but from hearing much about the claim at or about the time it arose.

Torrence and Desnoyes testify that large quantities of the petitioners lumber were taken for the uses set forth in the petition; but neither specifies any particular quantity or value, nor when or where taken.

Miller and Conner testify that they were called on by James McCloskey, acting Quartermaster General of General Harrison's army at Detroit, in the Fall of 1813, to appraise the value of boards that had been taken from a shop and fence belonging to the petitioner, for the use of the army; and that they appraised the same at $90.

Ignace Morass testifies that he was employed by the Quartermaster General of General Harrison's army, to repair the public buildings for the use of the army at Detroit, in October, 1813, and was ordered to take all the lumber he could find for that purpose by force, if he could not get it by purchase; and that, in pursuance of that order, he did take a quantity of lumber, namely: plank, boards, and shingles, the property of the petitioner, and with

out his consent; and did use the same in construction of barracks, and repairs of public buildings, and for coffins for deceased soldiers. The quantity he does not recollect, but believes it to have been worth from 150 to $200. In his explanatory deposition, he says that this lumber was taken from Sandwich, and not from any building or fence; and that he never received of the United States any pay therefor himself, nor ever paid, or agreed to pay, the petitioner therefor, or any part thereof.

The committee would require the testimony of James McClosky, the Quartermaster General, or who was acting in that capacity, if he were alive; but he is dead.

It is satisfactorily proved that the petitioner's lumber was taken from Sandwich, and used in the reparation and building of barracks and public build'ings, necessary for the use and comfort of the army, or for coffins for deceased soldiers; and that his fence and boards from his shop in Detroit, was also taken to supply the necessities of the army. What the value of all this lumber was, is not so easily to ascertain. In 1815, all that the petitioner claimed, amounted to $123 only; and this claim had relation to lumber taken in Sandwich, in whole or part, and was proved by the deposition of James Conner. In 1820, a claim was made for boards to the value of $90, intending, evidently, to leave out those taken from Sandwich, and this proved by William Watson. In 1829 and 1830, that portion taken at Detroit from fence and shop, is proved by Conner and Miller, who testify they appraised the boards by direction of McClosky; and Conner says nothing about that taken at Sandwich, and which must have been named in his first dedeposition. To render it still more embarrassing as to value and amount, the petitioner's account extends that taken at Sandwich, to $375 certain, and indefinitely for boards and shingles beyond that sum. The committee would not be too captious, but it does not perceive any satisfactory reason why the whole claim was not exhibited in 1815, and to the full extent of it. The value of the lumber must then have been better known than it can be now. No reason is offered why the appraisment of Miller and Conner was not resorted to in 1820, to shew the value of the lumber taken in Detroit. Under all these circumstances, the committee cannot come to any other conclusion, than that the whole lumber of the petitioner, used for the benefit of the United States, wherever that lumber might have been found, and for which he considered the United States bound to pay, was not of greater value than the amount of his first claim in 1815. The committee, therefore, report a bill for $123, as a full satisfaction for the petitioner's whole claim for his lumber taken for public use.