are involved, who are entitled to be paid before any distribution can be made." 1

The administrator or executor must prove his legal right to appear in his representative capacity, by the production of a probated will or letters of administration, as the case may be. A widow, prosecuting the claim of a deceased husband, was on this ground, denied standing before a commission.2 Similarly, a "voluntary," but not a legal representative, was denied the right to recover.3

§ 288. Citizenship of Original Claimant Governs Jurisdiction.

4

It has been observed that the commission will look behind the administrator or person acting in a representative capacity to determine the nationality of the real claimant or beneficiary, although in some cases the investigation was limited to the citizenship of the person upon whom the injury was originally inflicted. Indeed, it has been expressly held that the nationality of the administrator was without effect upon the question. This indifference as to nationality does not apparently extend to an executor.8

289. Who May Act as Legal Representative.

The question as to who may properly represent a claimant, during life and after death, has occasionally come before commissions for determination. The representative must always show actual or presumptive authority from a living person he represents. A municipal

1 Baynum (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 1271.

2 Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 45, 48. On her subsequently taking out letters of administration, the commission decided that under their rules of procedure, the case had been already closed.

3

3 Driggs (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2261.

* Supra, p. 629.

5 Alvarez (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 1353; Wiltz (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2246.

• Willet (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2254; Peck (U. S.) v. Venezuela, ibid. 2257.

7 Halley, Adm., and Ferris, Adm., No. 205 and No. 214 (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2242; Wiltz, Adm. (U. S.), v. Venezuela, Dec. 5, 1885, ibid. 2246. 8 Watson, executor of Meiggs (U. S.), v. Chile, Aug. 7, 1892, Moore's Arb. 2259. But the commission permitted an amendment of the memorial to show the citizenship of the heirs, of which permission no advantage appears to have been taken.

'See instances before second court of Alabama claims, Moore's Arb. 4681, 4683.

5

corporation has been held not to be the representative of its citizens who might claim for themselves.1 The second Alabama Claims court held that a judgment could not be rendered in favor of a guardian.2 On the other hand, the owners of a ship were regarded as "the natural representatives of the master and seamen." 3 It has also been held that a party may when absent from the state of residence, file his memorial by his attorney in fact. It has been observed that surviving partners, in accordance with the common law rule, have been permitted to prosecute partnership claims, although in one case where the surviving partner was an alien, his deceased citizen partner's interest was held to pass to the latter's personal representative. The administrator of a surviving partner has been allowed in appropriate cases to be substituted for the original claimant."

Under the Abandoned or Captured Property Act, by which proof of loyalty was a necessary condition of recovery, it was held that after the grant of letters of administration, when the seizure occurred, the administratrix, having title, could recover on proof of her loyalty, regardless of the disloyalty of her intestate, but that where the property was seized during the lifetime of the intestate, the latter's loyalty had to be proved.8

The second Court of Alabama Claims decided that where an administrator was appointed abroad, ancillary administration had to be taken out in the District of Columbia, as a condition for maintaining a claim.9

Under the French Spoliation Act of January 20, 1885, the Court

1 Reynosa (Mexico) v. U. S., July 4, 1868, Moore's Arb. 1356.

2 Ibid. 4681.

3 Emily Banning (U. S.) v. Mexico, July 4, 1868, ibid. 1356.

* Dusenberg (U. S.) v. Mexico, ibid. 2157.

5 Supra, § 276.

Coleman (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 98.

7 Carroll v. U. S., 13 Wall. 151. See also Newman v. U. S., 21 Ct. Cl. 205, in which the administrator in possession, and not the widow or next of kin had to prove loyalty. 8 Meldrim and Doyle v. U. S., 7 Ct. Cl. 597; Deeson v. U. S., 5 Ct. Cl. 526. So the disloyal administrator of a loyal intestate recovered award in Wilson v. U. S., 4 Ct. Cl. 559, 13 Wall. 128; ibid. in cases of disloyal executor, Taylor v. U. S., 5 Ct. Cl.

'Moore's Arb. 4681; see also Manning v. Leighton, 26 Atl. 258.

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. 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.

3 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 2 or arising from the tortious taking of property 3 may be assigned, so as to vest the legal title in the assignee.

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.

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.6

4

§ 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.

2 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.

4 Infra, § 306 et seq.

'Comegys v. Vasse, 1 Pet. 193.

• Judson v. Corcoran, 17 How. 612.