Upon this finding judgment was entered in favor of the defendants (29 Ct. Cl. 111), from which judgment the claimant appealed to this court.
Charles A. Kiegwin and J. M. Wilson, for appellant.
Asst. Atty. Gen. Howry, for appellees.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. [164 U.S. 380, 382] The findings of the court of claims in an action at law determine all matters of fact, precisely as the verdict of a jury. 24 Stat. 505, 2, 7; 26 Stat. 851, 1, 4; Desmare v. U. S., 93 U.S. 605 , 610; McClure v. U. S., 116 U.S. 145 , 6 Sup. Ct. 321.
That court finds that the claimant, upon whom rests the burden of proof, has not proved the extent of the depredation or the value of the property; and, there being thus a case of a failure of proof, judgment properly went against the party upon whom the burden rested. Counsel for appellant contend that the court of claims has attempted to create a rule of evidence as to the number of witnesses required in different classes of cases. Beyond the language of this finding, they call our attention to the opinion, in which, after a reference to the peculiar circumstances of this case, the court observes: 'The court has no reason, in this particular case, other than the lapse of time and the inaction of the claimant, to discredit the witnesses or suspect the claim.' We cannot so interpret the finding or the opinion. We do not understand that either lays down any arbitrary rule of evidence, as, for instance, that a claim 10 years old must be proved by at least two witnesses, one 20 years old by three witnesses, and so on. Such action would be legislative rather than judicial. The court simply refers, and properly, to the age of the claim, the failure to present it for such a length of time, and the meagerness of the testimony now offered to substantiate it, and then finds that such testimony, as to two essential facts in the claimant's case, to wit, the extent of the depredation and the amount of the loss, is not sufficient. It is true the court does not find that the witnesses have sworn falsely, but that is not essential, even when that is its belief. To say that the testimony is not satisfactory is more polite and less offensive, and at the same time equally sufficient. More than that, it is the very language of the statute (section 4): 'But the claimant shall not have judgment for his claim, or for any part thereof, unless he shall establish the same by proof satisfactory to the court.' We do not mean to intimate that the court in this [164 U.S. 380, 383] case believed that the witnesses committed perjury. On the contrary, it may well be that it simply found the testimony so confused, so lacking in distinctness and precision, as to suggest a weakening of the memory through lapse of time, and, therefore, not the satisfactory proof required of these essential facts.
We are not at liberty to refer to the opinion for the purpose of eking out, controlling, or modifying the scope of the findings. British Queen Min. Co. v. Baker Silver Min. Co., 139 U.S. 222 , 11 Sup. Ct. 523; Lehnen v. Dickson, 148 U.S. 71 , 13 Sup. Ct. 481; Saltonstall v. Birtwell, 150 U.S. 417 , 14 Sup. Ct. 169. Neither is this a case like U. S. v. Clark, 90 U.S. 37 , in which, in one finding, was stated the testimony, and, in another, the conclusion as to the ultimate fact, in which case the court held that it might consider the sufficiency of such testimony to establish that principal fact, for here the finding does not disclose the testimony, but only describes its character, and, without questioning its competency, simply declares its insufficiency.
The judgment is affirmed.