did appear that they were manufactured into lumber and that the lumber had commanded a price of from eight to nine dollars a thousand feet, and when the Government proved or defendant admitted that he cut and carried away some of the timber on this tract the Government was entitled to at least a verdict for nominal damages. As to any further right of recovery, see Wooden-ware Co. v. United States, 106 U. S., 432; Benson Mining Company v. Alta Mining Company, 145 U. S., 428.

Nor were the observations of the court in reference to the attitude of the Government justifiable. Whatever propriety there might be in such a reference in a case in which it appeared that the defendant had simply cut timber for his own use, or the improvement of his own land, or development of his own mine (and in respect to that matter, as it is not before us, we express no opinion), there certainly was none in suggesting that the attitude of the Government upheld or countenanced a party in going into the business of cutting and carrying off the timber from Government land, manufacturing it into lumber, and selling it for a profit; and that was this case. There is no pretense that the defendant cut timber for his own use; he says himself he sold it all. He ran a sawmill, cut timber, manufactured it into lumber, and made profit out of the sale of the lumber. There is nothing in the legislation of Congress or the history of the Government which carries with it an approval of such appropriations of Government property as that. The judgment must be reversed and a new trial ordered.

See, also, United States v. Humphries, 149 U. S., 277.

BERRY v. FLETCHER ET AL.

Circuit court, western district of Missouri (1 Dill., 67).

All who instigate, promote, or cooperate in the commission of a trespass, or aid, abet, or encourage its commission, are guilty.

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Where the defendants are sued jointly in trespass, the jury must find a single verdict, and assess damages jointly against such as are proved guilty of the same trespass. In trespass against several, the jury should estimate damages according to the most culpable of the joint trespassers.

All damages are referred by the law either to compensation or punishment. Compensation is to make the party injured whole. Exemplary damages are given, not to compensate the plaintiff, but to punish the defendant.

UNITED STATES v. BAXTER ET AL.

Circuit court, district of Washington, northern division (46 Fed. Rep., 350).

In an action of trespass by the United States for cutting timber on Government land, the burden of showing that the timber was cut by mistake, with a view of mitigating the damages, is upon the defendants; and in the absence of evidence to that effect, there is no error in permitting the Government to recover the value of the saw logs when already brought to the water.

TRESPASS-PARTNERSHIP.

Where such a trespass is committed by a firm, one partner can not show that as to him it was done through mistake, though his partner may not have been mistaken, and ask that one judgment for damages be rendered against him and a different one against his partner, since his holding the fruits of the tort after being notified of the mistake is a ratification of his partner's act.

A judgment against one joint trespasser is no bar to a suit against another for the same trespass. Nothing short of full satisfaction, or that which the law must consider as such, can make such judgment a bar.

AMERICAN BELL TELEPHONE Co. v. ALBRIGHT.

Circuit court, district of New Jersey (32 Fed. Rep., 287).

JUDGMENT-JOINT TRESPASSER-BAR OF RECOVERY.

A judgment against one joint trespasser or wrongdoer, without satisfaction, is no bar to a recovery against the others.

In event of wilful trespass committed by one member of a firm his copartners are responsible for his acts on behalf of the firm from which they receive the benefits or profits. (See Land Office Reports for 1887, p. 473.)

ENFORCING JUDGMENT.

DEPARTMENT OF JUSTICE,

Washington, January 21, 1887.

SIR: I am in receipt of your letter of December 21, with its inclosures, relative to timber trespass by R. D. Byrne and J. McDavid, doing business at Bluffsprings, Fla., up to 1884.

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Pursuant to your request the United States attorney for northern Florida has been instructed to bring civil suit for the manufactured value of the lumber, with a view to enforcing judgment against the defendants whenever the opportunity is afforded by their probable accumulation of property hereafter.

Very respectfully,

The SECRETARY OF THE INTERIOR.

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A. H. GARLAND,

Attorney-General.

SETTLEMENT IN CASES OF PUBLIC TIMBER TRESPASS.

COMPROMISE.

[Section 3469, U. S. R. S.]

Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.

DISTINCTION BETWEEN SETTLEMENT AND COMPROMISE.

[5 L. D., 240.]

A claim of the Government arising from timber depredations is for an unascertained amount which the Secretary of the Interior may properly find and determine and effect settlement for with the trespasser by receiving payment in full. The amount of such a claim having been duly ascertained and fixed, there is no authority in the Department to compromise the same by receiving in payment therefor a less sum than the amount found to be due.

Secretary Lamar to the Secretary of the Treasury, November 15, 1886.

I am in receipt of a communication from the Solicitor of the Treasury of May 13, 1886, relating to the question of the authority of this Department to compromise and settle timber depredation cases, referring to the opinion of the Attorney-General submitted January 8, 1880, upon this subject.

In his communication (with reference to this opinion) the Solicitor of the Treasury says: "I am informed that since the date of this letter from the Attorney-General, a copy of which was furnished your Department about the time it was received, all applications for compromise of claims in favor of the United States arising from trespasses have been considered and disposed of as provided for in section 3469, Revised Statutes" (excepting certain cases therein referred to). Then referring to the regulations issued by the Commissioner of the General Land Office authorizing special agents to receive and consider propositions to settle claims in favor of the United States arising from trespass where the same were not wilfully committed, says: "I know of no authority by which an executive officer can compromise and settle a claim in favor of the United States, except that conferred by sections 295, 409, 3229, and 3469, Revised Statutes." He brings the subject to my attention with a view of securing some uniform action. To this end I submitted the communication to the Commissioner of the General Land Office for report, which is now before me, a copy of which I also transmit herewith.

The Commissioner of the General Land Office, doubting the authority of that office or of this Department to settle and compromise such cases, recommends that the practice heretofore followed of entertaining propositions in that office and this Department for settlement of timber trespasses be discontinued.

While I concur fully in the opinion of the Solicitor of the Treasury that there is no authority by which an executive officer can compromise a claim in favor of the United States, except that conferred by section 3469, I do not consider said section as a restriction upon the authority of any executive officer to settle a claim in favor of the United States where such settlement is not the result of a compromise, but a settlement in full payment of the entire amount due the Government on such claim and where such settlement is made by the Department having control and jurisdiction of the subject-matter.

The authority conferred by section 3469 is alone necessary to be considered in the investigation of this subject. That section provides that "upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provision of this section shall not apply to any claim arising under the postal laws."

After a careful consideration of the question of authority of an executive officer to compromise a claim in favor of the United States, except as provided for by the section above quoted, and of the character of claims arising from timber depredations and the authority to settle the same as exercised by this Department, I have been unable to concur with the views of the Solicitor of the Treasury or the recommendation of the Commissioner of the General Land Office that no proposition for the settlement of timber depredation claims should in the future be entertained by this Department, or that the settlement of such claims effected through it is the exercise of a doubtful authority. It seems to me apparent that the difference of opinion as to the authority of this Department to settle timber depredation claims arises from the use of the words "compromise" and "settlement" in the same sense, or else the impression must prevail that the settlement of such claim, as now authorized and executed by this Department, is a settlement made upon a compromise of a specific amount found to be due.

Speaking of the regulations issued by the Commissioner and addressed to special agents, the Solicitor of the Treasury says that such regulations "contemplate that they may receive and consider propositions to settle claims in favor of the United States arising from trespass where the same were not wilfully committed," and adds: "I know of no authority by which an executive officer can compromise and settle a claim in

favor of the United States except that conferred by sections 295, 409, 3229, and 3469, Revised Statutes." If it is intended by this that no authority exists in this Department to settle a claim upon a compromise of the amount found to be due, I concur in that view; but if it is intended that there is no authority in this Department to ascertain and determine what amount is due, and to settle such claim by receiving the full amount so found to be due, I do not concur.

A compromise implies a mutual concession or an agreement to receive in payment a less sum than the amount found to be due, and it is in this sense that the term is employed in section 3469. I do not understand that the settlement of such claims as authorized by this Department is a settlement of that character.

The general power and authority conferred upon this Department respecting public lands includes the duty and authority to protect from depredation the timber thereon, and to seize what is cut and taken away from them wherever it may be found. It follows that in the exercise of that power and duty this Department has full authority to ascertain and determine under the law the extent of such depredation, the value of the timber cut and destroyed, the character of the trespass, and when the amount of the claim has been ascertained to receive payment of the full amount of such claim in satisfaction thereof. (Wells v. Nickles, 104 U. S., 447; Wooden Ware Company v. United States, 106 U. S., 432.)

In the execution of this power and duty special agents have been appointed, who are directed to investigate and report upon all cases of timber trespass, and to receive propositions for settlement of the same. The instructions issued to special agents require the trespasser to submit with his proposition for settlement a sworn statement showing the character of the trespass, the amount of the timber, its value when standing in the tree, when felled and cut into logs, when delivered at the landing, when delivered at the mill, when manufactured into lumber, and its value in its position and condition when purchased by the party in whose possession it was found.

In respect to the character of the trespass, the Supreme Court, in the case of Wooden Ware Company v. The United States, supra, have announced certain rules which have been embraced in the instructions to special agents. Under the sworn statement so furnished, and the rules adopted for their guidance, the special agents investigate and report upon the claim, by which means the amount due the Government is officially ascertained and determined. A claim due the Government arising from timber depredations is a claim for an unascertained amount, which the Secretary of the Interior, through the officers and agents of this Department, finds and determines. A settlement made with the trespasser by receiving payment of the amount so found to be due is in no sense a compromise, but payment in full of the claim due to the Government; and I can see no reason for invoking 11023

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