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United States, or of any officer disbursing or chargeable with public money, by the accounting officers of the Treasury, it shall thereby appear that he is indebted to the United States, and suit. therefor shall not be instituted within five years after such statement of said account, the sureties on his bond shall not be liable for such indebtedness.'' 1

"No suit on a marshal's bond shall be maintained unless it is commenced within six years after the right of action accrues, saving, nevertheless, the rights of infants, married women, and insane persons, so that they sue within three years after their disabilities are removed." 2

"If on the settlement of the account of any postmaster it shall appear that he is indebted to the United States, and suit therefor shall not be instituted within three years after the close of such account, the sureties on his bond shall not be liable for such indebtedness."' 3

The bankruptcy law provides: "Suits upon referees' bonds shall not be brought subsequent to two years after the alleged breach of bond."4 "Suits upon trustees' bonds shall not be brought subsequent to two years after the estate has been closed.'' 5

§ 180e. Statute of limitations to suits on contractors' bonds. Actions by laborers and materialmen upon bonds given to the United States by contractors for the construction or repair of public buildings and public works "shall not be commenced until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later." The preceding language of this statute forbids the commencement of such a suit by a laborer or materialman until six months after "the completion and final settlement of the contract."2 During that period, the United States alone can

§ 180d. St., § 3292. 2 U. S. R. S., § 3838, Comp. St. § 7197.

125 St. at L. 387, Comp.

3 U. S. R. S. 786, Comp. St. $ 1310; supra, § 33.

4 See infra, § 638.

5 Act of July 1, 1898, ch. 541, 30 St. at L. 558, Comp.

§ 50;

St. $9634, see infra, §§ 642, 654.

§ 180e. 1 Act of August 13, 1894, ch. 280, 28 St. at L. 278, Comp. St. 1901, p. 2523, as amended by Act of February 24, 1905, ch. 778, 33 St. at L. 811, Comp. St. Supp. 1909, p. 948. See § 5a, supra.

2 Ibid. Stitzer v. U. S., C. C. A., 182 Fed. 513, 516.

sue, although the creditors have the right to intervene in a suit brought by the United States.3 The work must not only be completed, but there must be a final settlement of the contract. So long as the matter is under consideration by the Department and the final payment has not been made, the contract has not been finally settled. The guarantee by the contractor to keep the work and materials in repair for a year after completion and acceptance, the retainer by the United States of five per cent of the contract price for a year after such acceptance, the retainer by the United States of part of the contract price to cover the cost of completing part of the work, the balance to be paid after the completion, and the refusal of the contractor to agree to the settlement made by the department; & do not postpone the running of the six months. The limitation of the time to sue is the same in case of the original plaintiff and an intervenor.9 It has been held that this statute of limitations is a condition to the cause of action granted by the statute 10 and consequently need not be pleaded; 11 and that so much of the statute as requires notice to all known creditors and publication of the commencement of the action need not be complied with within this period of time; 12 and that the commencement of an action upon such a bond in a State court, which had no jurisdiction of the same, does not extend the statutory period. 13

The action is not begun until a summons or subpoena or writ is issued although the plaintiff's pleading was previously filed.14

3 U. S. v. Winkler, 162 Fed. 397; Title Guaranty & Trust Co. v. Puget Sound Engine Works, C. C. A., 163 Fed. 168, 89 C. C. A., 618; U. S. v. McGee, 171 Fed. 209; Stitzer v. U. S., C. C. A., 182 Fed. 513, 516. 4 Stitzer v. U. S., C. C. A., 182 Fed. 513, 517.

5 U. S. v. Ill. Surety Co., 195 Fed. 306.

6 Ibid.

7 Robinson v. U. S., C. C. A., 251 Fed. 461, 464.

8 Ibid.

• Pederson v. United States, C. C. A., 255 Fed. 622.

10 Illinois Surety Co. v. U. S., 240 U. S. 414. See U. S. for the benefit of Starrett-Fields Co. V. Massachusetts Bonding & Ins. Co., 215 Fed. 241.

11 U. S. ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157; Baker Contract Co. v. U. S., C. C. A., 204 Fed. 390; Stitzer v. U. S., C. C. A., 182 Fed. 513, 516. 12 U. S. v. United Surety Co., 192 Fed. 992.

13 U. S. v. Boomer, C. C. A., 183 Fed. 726.

14 U. S. v. Scheurman, 218 Fed. 915.

The premature commencement of an action by one of the claimants before the six months have expired does not toll the statute.15 When the suit was duly begun, the plaintiff's pleading may be amended after the statutory period has expired provided the amendment states no new cause of action.16 But if the suit was prematurely brought, a petition for intervention by another creditor filed within the prescribed time does not toll the statute, nor can the bill be amended after the period of limitation has expired.17 An amendment substituting for the surety a company which had succeeded to its business and assumed its liability cannot be made after the statutory term has expired.18 The statute does not limit the time within which creditors can intervene in a suit brought by the United States; nor the time for service or publication of notice on the creditors.20

19

§ 180f. Statute of limitations to claims against the United States. "Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the Secretary of the Senate or the Clerk of the House of Representatives as provided by law, within six years after the claim first accrues: Provided, That the claims of married women first accrued during marriage, of persons under the age of twenty-one years first accrued during minority, and of idiots, lunatics, insane persons, and persons beyond the seas at the time the claim accrued, entitled to the claim, shall not be barred if the petition be filed in the court or transmitted, as aforesaid within three years after the disability has ceased; but no other disability than those enumerated shall prevent any claim from being barred, nor shall any of the said disabilities

15 U. S. ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157.

16 Bankers' Surety Co. v. Town of Holly, 219 Fed. 96; Illinois Surety Co. v. U. S., C. C. A., 215 Fed. 334. See infra, § 211.

17 U. S. ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157.

18 U. S. v. Scheurman, 218 Fed. 915.

19 U. S. v. Marsha, 225 Fed. 687. 20 U. S. for the use of Alexander Bryan Co. v. N. Y. Steam Fitting Co., 235 U. S. 327; U. S. for the use of Pittsburgh Planing Mill Co. v. Scheurman, 218 Fed. 915; Vermont Marble Co. v. National Surety Co., C. C. A., 213 Fed. 429.

"1

operate cumulatively.' A similar statute regulates suits against the United States in the District Courts." 2

The Act of March 17, 1883, as subsequently amended authorized the payment in certain cases of the claims of postmasters for the loss of money, stationery and postal savings certificates belonging to the United States and their possessions provides That this Act shall not embrace any claim for losses as aforesaid which accrues more than four years prior to the date of approval of Act; and all such claims must be presented within six months after such date, and no claim for losses which hereafter accrue shall be allowed unless presented within six months from the time the loss occurred.'' 8

"All claims for the refunding of any internal tax alleged to have been erroneously or illegally assessed or collected or any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, must be presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued Provided, That claims which accrued prior to June sixth, eighteen hundred and seventy-two, may be presented to the Commissioner at any time within one year from said date. But nothing in this section shall be construed to revive any right of action which was already barred by any statute on that date."

:

The Act of October 6, 1912, for the reimbursement of officers and enlisted men for loss or destruction of, or damage to their personal property and effects in the Naval Service, due to the operation of the war, or by shipwreck or other marine disaster contains the following provision: "That all claims now existing under this Act shall be presented within two years from the passage hereof and not thereafter; and all such claims hereafter

§ 180f. 1 U. S. R. S., § 1069, Pierce's Fed. Code, § 7798, 2 Fed. St. Ann. 65. See chapter on Court of Claims, infra.

2 Jud. Code, § 24, subd. 20, 36 St. at L. 1087.

3 Act of March 17, 1882, c. 41, § 1, 22 St. at L. 29, amended May 9, 1888, c. 231, § 1, 25 St. at L. 135,

June 11, 1896, c. 424, 29 St. at L. 458, and Jan. 21, 1914, c. 12, §1, 38 St. at L. 279, Comp. St. § 7211. See U. S. v. Smythe, C. C. A., 107 Fed. 376, affirming 120 Fed. 30; Henderson v. U. S., 42 Ct. Cl. 449, 18 Op. A. G. 369, 20 Op. A. G. 315. 4 U. S. R. S., § 3228, Comp. St. § 5951.

arising shall be presented within two years from the occurrence of the loss, destruction or damage." 5

The act for the reimbursement of officers, enlisted men, and members of the Nurse Corps of the Army for the loss of property in the military service since April 5, 1917, requires the presentation of such a claim within one year from the time that it accrued and within six months after peace is established.5a

The Act of March 29, 1918, which directs the deposit of money and sale of other property belonging to deceased persons in the Naval Service which have not been claimed provides: "That claims may be presented hereunder at any time within five years after such moneys or proceeds have been so deposited in the Treasury and, when supported by competent proof in any case after such deposit in the Treasury, shall be certified to Congress for consideration." 6

The Act of October 6, 1917, amending the Act of September 2, 1914, concerning compensation for death or disability contracted in the line of duty by commanding officers or enlisted men, or by women who are members of the Army Nurse Corps or the Navy Nurse Corps, when employed in active service, provides: "No compensation shall be payable unless a claim therefor be filed, in case of disability, within five years after discharge or resignation from the service, or, in case of death during service, within five years after such death is officially recorded in the department under which he may be serving: Provided, however, That where compensation is payable for death or disability occurring after discharge or resignation from the service, claim must be made within five years after such death or beginning of such disability. The time herein provided may be extended by the director not to exceed one year for a good cause shown. If at the time that any right accrues to any person under the provisions of this article, such person is a minor, or is of unsound mind or physically unable to make a claim, the time herein provided shall not begin to run until such disability ceases.7 No compensation shall be payable for any period more than two

5 Ch. 85, 40 St. at L. 389, Comp. St. § 2869a.

5a The Act of March 28, 1918, ch. 28, 40 St. at L.

6 Ch. 31, 40 St. at L., Comp. St. § 2980a.

7 § 309, added, October 6, 1917, ch. 105, § 2, 40 St. at L. 407, Comp. St. § 514.

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