able,1 a somewhat different view was taken by Congress in the French Spoliation Act of 1885 2 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.3 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.

4 30 Stat. L. 1205.

5 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,1 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,* but implied that one made prior to the Act of 1882 was not within the inhibitions of the Act of 1853, prohibiting assignments. 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.

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.

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

6 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.

the original claimant cannot be purged by the transfer of the claim to an assignee or successor personally in good standing.1

§ 293. Assignees in Bankruptcy.

Assignees in bankruptcy are regarded as purchasers for value, having the legal title to a claim and the right to sue thereon in their own name to the exclusion of the assignor debtor.2 In the Ruty case 3 before the French-American commission of 1880, the effect of the local law of the United States was recognized as permitting the passage of an international claim from the claimants to the assignees in bankruptcy. In the Christern case, before the German-Venezuelan commission of 1903, it was held that the nationality of the assignee in bankruptcy, and not that of the insolvent debtors, governed the jurisdiction of the commission.4

The court of commissioners of Alabama claims held that claims of the first or the second class and particularly war-premium and exculpated cruiser claims passed to the assignee by an assignment in bankruptcy or insolvency or by a general assignment for the benefit of creditors.5 The Court of Claims, under the Abandoned or Captured Property Act, has held that an assignment passed legal title to the assignee in bankruptcy, who may sue on the claim in his own name.7 Under the provisions of the Act of 1891, making appropriations for French Spoliation awards, it has already been observed that in cases where the original sufferers were adjudicated bankrupts, awards were 1 Robinson (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2389; Dimond (U. S.) v. Mexico, ibid. 2386; Young (U. S.) v. Mexico, ibid. 2753.

6

8

2 Christern and Co. (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 597, 598; Parrott (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 3009-3011 (assignor held divested of all title).

3 Ruty (France) v. U. S., Jan. 15, 1880, Boutwell's Rep. 108; Moore's Arb. 2401. Ralston, 597. One of the insolvent debtors was a Dane, but as the assignee in bankruptcy was a German, the commission took jurisdiction. Inasmuch as the protocol did not give jurisdiction over claims "owned" by Germans, the award is open to question as in conflict with the rule that claims must be national in origin and continuously national in ownership.

5 Moore's Arb. 4679, 4682. See cases in municipal courts cited in note 2, p. 4679. Erwin v. U. S., 13 Ct. Cl. 49, 97 U. S. 392.

7 Burke v. U. S., 13 Ct. Cl. 231; Person v. U. S., 8 Ct. Cl. 543. Probably the assignee could also sue in the name of his assignor, as in Morgan v. U. S., 14 Ct. Cl. 319. 826 Stat. L. 908.

to be made "on behalf of the next of kin instead of to assignees in bankruptcy." It has also been noted that the inhibitions of the Act of 1853 against the assignment of claims against the United States does not apply to assignees in bankruptcy or insolvency. As between the bankrupt and the assignee in bankruptcy, the protocol, the rules of the commission, or the statute creating the commission usually provide who shall verify the petition.

$294. Receivers.

3

Receivers and liquidators of bankrupts have in international law practically the same legal position as assignees. Citizenship of the bankrupt and of the receiver or liquidator has been held a jurisdictional prerequisite by international tribunals. Disqualifications of the bankrupt, e. g., unneutral conduct, disloyalty or any other impairment of his right to claim, affect equally the right of the receiver. His right, as legal successor, to prosecute the claims of the bankrupt is fully admitted. He cannot, however, prosecute the international claims of individual creditors of the bankrupt, for after the receiver has been appointed, no individual credit of the total estate is the property of any one creditor. The receiver merely acts as administrator of the property of the bankrupt."

5

BENEFICIAL OR EQUITABLE OWNERS

$295. Equitable American Interest Protected.

That the Department of State in its diplomatic support of claims 1 Supra, p. 639. To the effect that next of kin may prosecute claim, if assignees fail to do so, see Ship Jane, Buchanan v. U. S., 24 Ct. Cl. 74.

3 Chauncey (U. S.) v. Chile, May 24, 1897, No. 4, Report, 1901, p. 22; Brewer, Moller and Co. (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 597; Baasch and Römer (Netherlands) v. Venezuela, Feb. 28, 1903, ibid. 906. But see Christern (Germany) v. Venezuela, Feb. 13, 1903, ibid. 598, where the liquidator's citizenship alone was held to govern.

4 See, e. v., Accessory Transit Co. (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 1558, 1560.

For a contrary decision of the Court of Claims, see Howes v. U. S., 24 Ct. Cl. 170; cf., however, Redfield v. U. S., 27 Ct. Cl. 393, and Borcherling v. U. S., 35 Ct. Cl. 311, 185 U. S. 223.

Bance (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 172; Morris' Rep. 383. See also The Alsop Claims (U. S.) v. Peru, Jan. 12, 1863, Moore's Arb. 1627.

looks to the citizenship of the real or equitable owner of the claim as distinguished from the nominal or ostensible owner appears from the sections on corporations, administrators and assignees. It is not possible to posit any definite rule, but it may be said that the equitable American interest in property abroad, whether on the part of creditors, mortgagees, stockholders or other persons with special or derivative rights, has often led the Department, in the exercise of its discretion, to use good offices for their protection, although the record title may have been vested in an alien. In the case of vessels flying a foreign flag, however, the strict rule is applied that the state of the flag is presumed to undertake the international protection of the vessel.

In the United States-Venezuelan commission of 1903, Umpire Barge held that the beneficial owner actually "owned" the claim and properly appeared as the claimant.1

The Court of Claims in its awards under the Abandoned or Captured Property Act 2 and under the French Spoliation Act 3 held that the record title was not conclusive, but that the equitable owner could establish his equitable ownership before the court.

$296. Creditors.

Those having a beneficial interest in a claim are frequently creditors, and the Department of State in the prosecution of claims takes account of the equitable interests of American creditors.

As a jurisdictional matter, the decisions of arbitral commissions have in some cases been against and in others in favor of the right of American creditors of an alien to claim as the real sufferers from violations of the property rights of their alien debtors. The SpanishAmerican commission under the treaty of 1871 held in several cases that injuries upon the property of a Spanish subject gave his American

1 Heny (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 14, 23. See also Alvarez (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 1353, to the effect that the person who had the "right to the award" must be considered the "real claimant," and must be a citizen. See also Wiltz, Adm. (France), v. U. S., Jan. 15, 1880, ibid. 2246, and Texas Star v. U. S., Act of June 23, 1874, ibid. 2360, 2366.

2 Hall v. U. S., 11 Ct. Cl. 704; Cones v. U. S., 8 Ct. Cl. 421.

Van Wagenen v. U. S., 25 Ct. Cl. 110.