PENDING SUIT. See article ANOTHER SUIT PENDING. PENSIONS. I. IN GENERAL, 309. II. FEES OF PENSION AGENTS, 309. III. UNLAWFUL RETENTION OF MONEY BY AGENT, 310. IV. FRAUDULENT CLAIMS, 310. I. IN GENERAL. - Questions of practice in suits involving pensions chiefly arise in regard to the compensation claimed by pension agents for their services, the unlawful retention by such agents of pension money received, or the presentation of fraudulent claims to the pension office.1 II. FEES OF PENSION AGENTS— In General. The compensation which a pension agent may receive for prosecuting a claim is regulated by statute,2 and the recovery of a larger amount, on a quantum meruit, is not permitted. Agreements to pay fees larger than those allowed by statute will be disregarded in equity, and 1. Action on Agent's Bond. A pensioner cannot maintain an action in his own name on the bond of a United States pension agent, since there is no covenant in such a bond for his benefit. Hughes v. Cotton, 13 Bush (Ky.) 596. Subpoenas Issued by United States Courts. The Act of July 25, 1882, authorizes judges and clerks of the federal courts to issue subpoenas, upon application of the commissioners of pensions, for the examination of witnesses concerning pension claims. Under this act the application for a subpoena should be drawn with reasonable certainty and precision, so that it may appear on its face to be in accordance with the act; and the pension claim in which the testimony is required should be reasonably identified. And the subpoena issued under such an application must be drawn with equal certainty, and must follow the require ment of the application. In re Gross, 78 Fed. Rep. 107. In an Action of Assumpsit Brought Against a Soldiers' Home by an inmate thereof, to recover money which the plaintiff alleged that he had been compelled to pay to the home out of his pension, an affidavit of defense was held sufficient which averred that a rule of the home required the inmates to turn over eighty per cent. of their pension money to the treasury of the institution, that upon the admission of the plaintiff he signed an agreement in writing to comply with the rules of the home of which he knew this to be one, and that the payments were made voluntarily in accordance with this agreement. Bryson v. Home for Disabled, etc., Soldiers, etc., 168 Pa. St. 352. 2. U. S. Rev. Stat., § 5485. where excessive fees have been received by the agent, they may be recovered by the pensioner in an action of assumpsit.' Indictments for Receiving Excessive Compensation. An indictment of a pension agent for taking compensation in excess of that fixed by statute will be held sufficient if it follows the language of the statute creating the offense.2 III. UNLAWFUL RETENTION OF MONEY BY AGENT. - A pension agent may also be indicted for unlawfully withholding from a pensioner money received from the government in payment of a pension claim. 3 IV. FRAUDULENT CLAIMS. -The transmission or procuring the transmission to the pension office of false or fraudulent instruments, in support of a pension claim, is an indictable offense. It is not necessary, however, to charge in the indictment that the act was committed feloniously or with felonious intent.♣ 1. Powell v. Jennings, 3 Jones L. (N. Car.) 547. Money paid to a pension agent in excess of the amount allowed by statute may be recovered by the pensioner as money received to his use; and in an action by an agent to recover further illegal compensation, the defendant may recover the amount illegally taken, under a plea of set-off. Such a claim being illegal under the statute, it cannot be made the subject of arbitration. Hall v. Kimmer, 61 Mich. 269. 2. U. S. v. Wilson, 29 Fed. Rep. 286. Arrears of Pension. Where an agent who has prosecuted a claim for arrears of pension is indicted for receiving a larger fee for his services than that allowed by law, the indictment need not state whether or not the arrears were procured after the allowance of an original pension. U. S. v. Reynolds, 48 Fed. Rep. 215. Allegations Not Necessary. It is not necessary to allege expressly that the amount received by the agent was in excess of that legally chargeable, or to negative the existence of a contract in regard to compensation. Nor need it be charged that the applicant for the pension has been in the military or naval service of the United States. U. S. v. Van Leuven, 62 Fed. Rep. 52. The indictment need not describe the defendant as an agent or attorney. To describe him as a lawyer is sufficient. When the amount of the excess is unknown to the grand jury it should be so alleged in the indictment. It is not necessary to aver a demand for the return of the money unlawfully taken. Frisbie v. U. S., 157 U. S. 160. Where it is averred generally that the accused was instrumental in procuring a pension, the indictment need not show how he was instrumental. And since the intent of the person receiving the excessive fee is immaterial, it is not necessary to allege that he committed the offense wilfully, wrongfully, or unlawfully. U. S. v. Koch, 21 Fed. Rep. 873: U. S. v. Reynolds, 48 Fed. Rep. 215. 3. U. S. v. Benecke, 98 U. S. 447; U. S. v. Mason, 8 Fed. Rep. 412; U. S. v. Irvine, 98 U. S. 450. An Indictment charging an agent with wrongfully withholding pension money alleged in substance as follows: That the accused had been employed to act as the agent of V., the guardian of certain minors, to collect a pension; that the pension was paid to said agent, and that he refused to pay the same to the guardian. Since it appeared from other allegations in the indictment that the minors were the pensioners, and since the indictment alleged that the money was wrongfully withheld from the guardian, and did not charge that it was withheld from the minors, it was held to be defective. U. S. v. Chaffee, 4 Ben. (U. S.) 330. 4. U. S. v. Staats, 8 How. (U. S.) 41; U. S. v. Kessel, 62 Fed. Rep. 59; U. S. v. Bickford, 4 Blatchf. (U. S.) 337; U. S. v. Adler, 49 Fed. Rep. 733. Allegations Requisite to an Indictment for This Offense. Where a makes it a felony to transmit or present any deed or other writing to any office or officer of the government in support of or in relation to any account or claim, with intent to defraud the United States, knowing the same to be false, a felonious intent is no part of the description, and the offense is complete without it. An indictment, therefore, in a prosecution for the transmission to the commissioner of pensions of a false affidavit, which charges the act to have been done "with intent to defraud the United States," is sufficient. U. S. v. Staats, 8 How. (U. S.) 41. An indictment which merely charges that the defendant transmitted to the commissioner of pensions a falsely altered certificate made by a board of surgeons in relation to a claim for a pension is not sufficient under section 5421 U. S. Rev. Stat. Such an indictment must also allege how or to whom the certificate was published, and that it was published to obtain, or to aid another person to obtain, money fraudulently from the United States. U. S. v. Kessel, 62 Fed. Rep. 59. An indictment for transmitting false papers to the pension office, with intent fraudulently to procure a bounty, contained a large number of counts, each count charging a distinct felony, and some of them charging subornation of perjury. On a motion to quash the indictment on the ground that it charged distinct felonies, and also felonies of different grades, it was held to be good under the Act of Feb. 26, 1853, but that the counts for subornation of perjury must be stricken out. U.S. v. Bickford, 4 Blatchf. (U. S.) 337. 311 An indictment for knowingly procuring the presentation of a false affidavit concerning a pension claim charged the offense in substance as follows: That the defendant on a certain day, at the county of W. in the southern district of Iowa, did then and there present to the commissioner of pensions at Washington, District of Columbia, etc. And in conclusion it further charged that at the time and place aforesaid, at the county of W., state of Iowa, the defendant did then and there present and cause to be presented to the commissioner of pensions aforesaid, etc. It was held that this indictment charged the presentation of the affidavit at Wapello, Iowa, and not at Washington, D. C. And in the same case it was also held that an indictment which alleged that the affidavit was false because of the false and forged signature thereto was sufficient, and that it need not further allege that the pension claim itself was false. U. S. 2. Adler, 49 Fed. Rep. 733. The Verdict. Where an indictment for defrauding the government by the presentation of a false pension claim charges that the claim was for a certain amount, it is not necessary for the jury to find that the whole amount charged was fraudulently obtained by the conspirators. It is sufficient to find that any part of it was paid by the government. U. S. v. Frisbie, 28 Fed. Rep. 808. Volume XVI. PERFORMANCE. CROSS-REFERENCES. As to Pleading Performance of Conditions Precedent, see the articles CONDITIONS PRECEDENT, vol. 4, p. 626; ASSUMPSIT, vol. 2, p. 999; NEGOTIABLE INSTRUMENTS, vol. 14, P. 529. Pleading Performance of Conditions of Insurance Policy, see the article INSURANCE, vol. 7, p. 413. Pleading Performance of Covenant, see the article COVENANT, vol. 5, p. 380. Pleading Performance in Defense to Actions on Bonds, see the Pleading Performance in Defense to an Action of Debt on an Alleging Performance in Declaring on Contracts, see the article Proving Nonperformance by the Plaintiff under the General Departure in Pleading Performance, see the article DEPART- Necessity for Alleging Request for Performance in Action for Performance of Decree Before Filing Bill of Review, see the Payment into Court, see the article FUNDS AND DEPOSITS Payment, see the article PAYMENT, ante, p. 164. Proof of Performance under General Issue. It being usually proper to introduce, under the general issue, anything which will show that the plaintiff's claim is not well founded in fact, it follows that in actions on contracts the defense of performance of the contract is not ordinarily set up specially.1 1. In Assumpsit, not only such defenses as deny the truth of the declaration, but almost all matters in avoidance may be introduced under the general issue. See the article AssUMPSIT, vol. 2, p. 987. In Debt, any matter may ordinarily be given in evidence under the general issue, which shows that nothing is due. See the article DEBT, vol. 5, p. 894. In Covenant, however, there being no plea of the general issue, performance General Averment of Performance Not Sufficient. It is held that an averment of a breach of contract is not met by a general plea of performance; such plea should state the manner of performance.1 Conclusion. It seems that a plea of performance properly concludes with a verification.2 must be specially pleaded. See the article COVENANT, vol. 5, p. 342. In Code Pleading the defendant may introduce, under the general denial, any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action. See the article ANSWERS IN CODE PLEADING, vol. 1. p. 817. A Special Plea Amounting to the General Issue is bad on demurrer. See the article GENERAL ISSUE, vol. 9, p. 883. Plea Not Amounting to General Issue. Where, in assumpsit for breach of a contract to receive certain lumber, the defendant pleaded that under the terms of the contract he was still in the performance of the same, according to a stipulation that, upon the plaintiff's neglect, the defendant might do the work, and that the plaintiff was barred from maintaining any action until the completion of such performance, it was held that this was not a plea amounting to the general issue. Yellow Poplar Lumber Co. v. Chapman, 74 Fed. Rep. 444. Ples Setting Out Condition. Where, to a contract on which he is sued, the defendant sets up a condition avoiding his liability if kept and performed, his plea should allege the performance of such condition. Smith v. Riddell, 87 Ill. 165. Setting Up Both Illegality and Performance. In Lee v. Dodd, 20 Mo. App. 271, it was held that where the defendant claimed no rights as against the plaintiff under the contract sued on, he could set up both the illegality of the contract and its performance. 1. Conrad v. Western Union Tel. Co., 162 Pa. St. 204; Hogencamp v. Ackerman, 24 N. J. L. 133; Tinney v. Ashley, 15 Pick. (Mass.) 546, 26 Am. Dec. 620. In Sayre v. Minns, 2 Cowp. 575, Lord Mansfield said: "I take this to be a rule in pleading, that you cannot go to issue on a general averment of performance; and the reason is this, that the question may be brought to some degree of certainty and notice given of what is to be agitated at the trial. When a particular breach is as signed, there is an affirmative offered on one side, upon which the other may take issue.' When Plea Must Specially Set Out Manner of Performance. In general, a plea of performance of a condition must show specially the manner of the performance. The exception is, where the matter is of so intricate and complicated a nature, or embraces such a variety of minute circumstances, that a particular statement would cause great prolixity; which the law does not countenance. I Chit. Pl. (5th Eng. ed.) 567. Thus, where the condition is to return all writs, or to account for all moneys received, etc., a general performance may be well pleaded. Story Pl. (1st ed.) 154. But if the condition be to perform a specific act, as in the present case, a special performance must be pleaded. Tinney v. Ashley, 15 Pick. (Mass.) 546, 26 Am. Dec. 620. Failure of Telegraph Company to Deliver Message. In an action against a telegraph company for failure to deliver a message, the defendant alleged that it transmitted the message promptly and correctly over its own line to the terminus thereof, and delivered it for transmission to another company, naming but not further describing this. company, and that the error, if any, occurred beyond its own line. It was held that such affidavit of defense was insufficient for not giving the facts as to the defendant's own handling of the message, the time at which and place to which it was sent, etc. Conrad v. Western Union Tel. Co., 162 Pa. St. 204. 2. Hogencamp v. Ackerman, 24 N. J. L. 133. In Sherwin v. Bliss, 4 Vt. 96, it was held that a plea of general performance, or one alleged in terms not contradicting the specific allegations of the breach in the declaration, or bringing new matter into controversy, properly concludes with a verification. But where a plea of performance consists in nothing but an averment of performance of all things specifically alleged in the declaration not to have been performed, it ought to conclude to the country. |