of Claims, besides the validity and amount of the claim, determined its "present ownership," which was regarded as lodged in the personal representative who might maintain a suit at law if the claim were an ordinary chose in action; i. e., in the administrator of the original sufferer or of the latter's assignee. By the Act of March 3, 1891 (26) Stat. L. 862, 908), making appropriations for the payment of awards, Congress provided that where the original sufferers were adjudged bankrupts, the award shall be made on behalf of the next of kin instead of assignees in bankruptcy.1 In the case of individual claimants, the Court of Claims had to certify to the Secretary of the Treasury that the personal representative on whose behalf the award was made represented the next of kin, of which fact, and of the giving of adequate security, the Court had to be satisfied. The Court construed this as general legislation, and held thereafter that only the administrator who represents the next of kin of the original sufferer was the party entitled to relief.2 The record of a probate court granting administration was not deemed sufficient evidence of his representing the next of kin, which was required to be supplemented by depositions.3

A recent bill introduced in Congress provides that no claim against the United States shall be paid to a public administrator, unless he was "appointed upon the petition of heirs at law and next of kin of the deceased, or a bona fide creditor of the estate." 4

§ 290. Assignability of Claims.

ASSIGNEES

The assignability of claims is fully recognized by practically all systems of municipal law and by international law. In Anglo-American law the test in determining the assignability of a chose in action is whether or not it would survive and pass to the personal representative of a decedent. If it would so survive, it may be assigned so as

1 Brig Hannah, Van Uxen, Adm., v. U. S., 27 Ct. Cl. 328.

2 Ship Concord, 27 Ct. Cl. 142; Ship Theresa, 28 Ct. Cl. 326 (dictum). See also Blagge v. Balch, 162 U. S. 439.

› Eldridge, Adm., v. U. S., 26 Ct. Cl. 253. See also Ship Eliza, 28 Ct. Cl. 480, and Ship Juliana, 35 Ct. Cl. 400.

4

* S. 3180, 63rd Cong., 1st sess., Oct. 2, 1913, by Senator Hughes.

to pass an interest to the assignee which he can in most jurisdictions enforce in his own name; if it does not so survive, it is not assignable.1 The common-law rule as to the non-assignability of choses in action, first modified by courts of equity, has been practically abandoned, and rights of action arising out of contract or out of torts which are injuries to property, are now generally recognized as assignable. So in international law claims arising out of concession contracts or arising from the tortious taking of property 3 may be assigned, so as to vest the legal title in the assignee.

2

Under the general rule that a claim must be national in origin in order to obtain diplomatic cognizance, the Department of State has on many occasions declined its protection to the American assignee of a claim which originally belonged to an alien. In other words, the right of interposition is not assignable. When, however, a foreign concession, after its valid assignment to an American citizen, is violated by a foreign government, the injury is considered American in its origin and properly the subject of American protection.

§ 291. Assignor and Assignee Must Have Same Citizenship.

The validity of an assignment being recognized, the transfer of a claim from an assignor of one nationality to an assignee of another has often been regarded by international tribunals as fatal to the claim. Thus, an assignor, a citizen of the claimant country, was in several cases held to have denationalized his claim and to have lost his standing before an international commission by reason of having transferred it to the national of another country.5 By the assignment, 12 Am. and Eng. Encyc. of Law, 1017, citing Pomery on Remedies and remedial rights, §§ 146-147. See also Comegys v. Vasse, 1 Pet. 193.

2 Orinoco Steamship Co. (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 73 (although the question of notice to the government affected the matter); McMurdo (U.S.) v. Portugal, June 13, 1891, Moore's Arb. 1865 et seq., For. Rel., 1900, 1903.

3 Camy (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2398, Boutwell's Rep. 105; Lasarte (Peru) v. U. S., Jan. 12, 1863, Moore's Arb. 2390, 2394. Decisions of BritishAmerican Claims Commission of 1871, Ralston, International arbitral law, 103 (wrongful seizures in prize cases); Decisions of the first and second Court of Alabama Claims, Moore's Arb. 4654 and 4679, 4682; Judson v. Corcoran, 17 How. 612; Lewis v. Bell, 17 How. 616.

'Moore's Dig. VI, § 982.

5 Laffitte (U. S.) v. France, July 4, 1831, Kane's Notes; Jarrero (U. S.) v. Mexico,

the claim ceases to be the claim of the originating state. The assignor having lost the legal title to the claim and the assignee not having the necessary jurisdictional nationality are both disqualified as claimants. On the other hand, the claims of assignees, who by nationality were within the jurisdiction of the commission, have been disallowed when the assignor was of another nationality.1 Jurisdictional citizenship of both assignor and assignee is necessary. The conclusion may therefore be drawn that while claims can be denationalized by their assignment to aliens,2 they cannot be nationalized by their assignment from their original alien owners to citizens. Even where they are. original American claims, but are assigned to aliens and then reassigned to Americans, it seems that the United States will ordinarily decline to extend its protection. These conclusions are merely phases of the general principles that a claim must be national in origin as well as at the time of presentation and that a claim must be continuously owned by a citizen. The assignment of a claim, therefore, from one citizen to another of the same country will not affect its national character.5 In this case, only the private and not the public interest passes.

§ 292. Special Provisions of Federal Statutes in Certain Cases.

While the right to indemnity for an unjust capture has been held to attach to the ownership of the property captured and to be assignMar. 3, 1849, Moore's Arb. 2324; Camy (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2398 (in which case an ingenious argument to the effect that the U. S. Act of 1853 prohibiting assignments of claims against the U. S. made the transfer invalid, and therefore left the title in the assignor, was considered unsound); Benson (U. S.) v. Peru, Jan. 12, 1863, ibid. 2390 (assignment by an American citizen to a Peruvian); Coleman (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 98 (assignment by British subjects to American assignee a ground of disallowance); Gerson (U. S.) v. Mexico, July 4, 1868, No. 531, Opin. II, 565-569.

1 Slocum (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 2386. See also Dimond (U.S.) v. Mexico, ibid. 2388 (dictum); Barnes (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 1353; Lasarte (Peru) v. U. S., Jan. 12, 1863, ibid. 2390, 2394.

The one class of claims which cannot be extinguished by assignment are those where there is a direct affront or injury to the state, e. g., the Lienchou Riot Cases, For. Rel., 1904.

3 Candelaria Gold and Silver Mining Co. claim, 1912.

Infra, § 306 et seq.

'Comegys v. Vasse, 1 Pet. 193.

• Judson v. Corcoran, 17 How. 612.

able,1 a somewhat different view was taken by Congress in the French Spoliation Act of 18852 and in the Act of March 3, 1891, making appropriations to pay awards thereunder. In the belief that many of these claims had passed out of the families of the original sufferers from the spoliations and into the hands of speculators who had purchased them at a great discount and had then pressed for payment of the full amount of the original losses, Congress authorized the court to determine whether the claims belonged to assignees, the date of the assignment and the consideration paid therefor, and in the Act of 1891 even provided that awards should be made on behalf of next of kin instead of to assignees in bankruptcy. Few claims were presented by assignees. The Act of March 3, 1899 provided that no French Spoliation claim appropriated for was to be paid "if held by assignment or owned by an insurance company." Where the assignment had been made for a good consideration prior to 1800, the date of the assumption of liability by the United States, it was held that the assignee, who then owned the claim, was the one on whose behalf the government asserted the claim against France, and the one entitled to an award under the Act.5

In 1853, Congress provided, in an Act to prevent frauds upon the Treasury,

"that all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, . . . shall be absolutely null and void, unless the same shall be freely made and executed . . . after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof." "

1 Comegys v. Vasse, 1 Pet. 193.

223 Stat. L. 282. A similar prohibition of payment to assignees was embodied by Congress in the Act appropriating funds to remunerate the officers and crew of the U. S. S. Wyoming for valuable services in destroying hostile vessels in Japan. Act of Feb. 22, 1883, 22 Stat. L. 422.

3

Provision repeated in subsequent appropriation acts in payment of French Spoliation Claims. Memorandum printed for Committee on War Claims, 62nd Cong., 2nd sess. (Washington, 1912), p. 54.

430 Stat. L. 1205.

Brig Betsey, Daniel Boyer, Master, H. Doc. 369, 60th Cong., 1st sess., Report of findings of the Court of Claims, to accompany H. R. 19115 (1912), p. 71.

• Act of Feb. 26, 1853, 10 Stat. L. 170, now R. S., § 3477. The history of the Act

While the Act was at first broadly construed to prevent all assignees from bringing suits against the United States, its application has since been held to cover cases of voluntary assignment only, and not to extend to cases where title is transferred by operation of law, e. g., where the assignee is an executor, administrator, or an assignee in bankruptcy, or for the benefit of creditors.2 It has been held that when the assignment is void under the Act of 1853, it may before actual payment be repudiated by the assignor, who may then sue in his own name. The Act of March 3, 1887, which enlarged the jurisdiction of the Court of Claims by providing a right to sue the United States on claims in respect of which "the party would be entitled to redress against the United States. . . if the United States were suable," was held to give an assignor the right to sue the Government in his own name.3

The court of commissioners of Alabama claims held that any assignment made after the Act of 1882, reëstablishing the court, was void,1 but implied that one made prior to the Act of 1882 was not within the inhibitions of the Act of 1853, prohibiting assignments.5 An international claim of a citizen of France against the United States was in the Camy case held as not subject to the prohibition against assignment contained in the Act of 1853.6

It need hardly be emphasized that any defect in the claim or in

and of its interpretation by courts and accounting officers is discussed by E. I. Renick in an article "Assignment of government claims,” 24 American Law Rev. (1890), 442-456; 876-877.

1 U. S. v. Gillis, 95 U. S. 407; Cote v. U. S., 3 Ct. Cl. 64. But see Lawrence v. U. S., 8 Ct. Cl. 252.

2 Erwin v. U. S., 97 U. S. 393, 397; Goodman v. Niblack, 102 U. S. 556 (dictum); Butler v. Goreley (1892), 146 U. S. 303, 312; Redfield v. U. S., 27 Ct. Cl. 393. It has no application to the equitable doctrine of subrogation. U. S. v. American Tobacco Co., 166 U. S. 468.

3 Emmons v. U. S., 48 Fed. 43. See also U. S. v. Jones, 131 U. S. 1.

4 Stevens v. U. S., No. 265, class 2, Moore's Arb. 4680. See also Manning v. Leighton, 26 Atl. 258, 260 and cases cited. See also Howes v. U. S., 24 Ct. Cl. 170.

6

5 See Mr. Moore's account in Moore's Arb. 4680.

Camy (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2398; Boutwell's Rep. 105. The Act of 1853 was also considered inapplicable to a claim against the Chinese indemnity fund. Hubbell v. U. S., 15 Ct. Cl. 546.