ence to the Secretary of the Treasury, and allowed in the account settled at the treasury in 1825, and that it is for the petitioner to show clearly that they were by mistake omitted in that settlement.

The sixth item is for money to H. Smith for extra work, $30. The circumstances of this case are simply these: Stewart, as subcontractor, undertook to build a bridge over Good's run, but absconded without completing it. (Rep. 253, p. 62.) Smith was employed by Shepherd to do some of the work in completing it. (Id., 177.) In building bridges, Shepherd was bound by the contract to provide for "the free entrance and passage of the water." (Id., p. 9.) This had not been properly done, and Thompson required Smith, who was finishing the bridge, to make the water-way deeper. (Id., p. 177.) It was done, and Shepherd paid Smith. There is no allegation that the bridge had been accepted before this work was done. If it had been received from the contractor, it is obvious that Smith would not have been paid by the contractor. The fact that he was paid by Shepherd is conclusive that the bridge had not been approved and accepted by Thompson, but was still at Shepherd's risk.

The seventh item is for coping various side walls to bridges, $3,586 50.

This item is put forward with singular hardihood, as a charge for work "not required by contract." By the contract, after covenanting to build all bridges, &c., Shepherd agrees to cope and point such walls as may require it; to procure materials of an approved quality; and, in short, to do everything necessary for the proper and permanent construction of the said bridges, in such manner and form as the said superintendent may direct and approve." (Rep. 253, p. 9.)

In treating of this item, it seems to be assumed by the petitioner that after the contract was made, Thompson received instructions from the Secretary of the Treasury to require a different kind of coping from the contractor.

Now, the only requirements made by the superintendent of the contractor were two. The first was by note, dated May 26, 1817, three months before the receipt of the treasury instructions. (Rep. 253, p. 165, No. 1.) This was a friendly note to Shepherd, advising him that his quarrymen were wasting stone that would do for coping. In it Thompson states the dimensions of the coping required, and says the work must be done as well as that on the eastern division of the road already finished. Here is no change from the description of the contract. It was clearly within the competency of Thompson to determine the dimensions of the coping, and that he required nothing unreasonable is manifest from two facts on the face of the note. 1st, the coping stone were such as the "quarriers break up for common purposes;" and 2d, it was to be as good as that already put up on another part of the road.

The next requirement of the superintendent was dated on the 24th of August, 1817. (Rep. 253, p. 165, No. 2.) In this note he says he has "received directions from the Secretary of the Treasury to have all the walls coped with heavy stone and well clamped to prevent them from injury by evil-disposed persons." "You will, therefore," Rep. C. C. 260-2

he tells Shepherd, "have all your walls covered with the heaviest stone that can be procured; but in lieu of clamping you will have them dowelled with locust pins of an inch in diameter, or with iron dowels; and where it is not convenient to get heavy stone, you will put in two dowels of iron; three-fourths of an inch will be large enough."

Recur for a moment to the contract. By it Shepherd binds himself to cope the walls with materials of approved quality, and do everything necessary for their proper and permanent construction-they being part of the bridges-in such manner as the superintendent should direct. Did the superintendent require anything more than he was authorized to require under this agreement? Shepherd undertakes to cope the walls with approved materials. Thompson tells him to get the heaviest stone he can. Shepherd agrees to do everything necessary to its permanency as the superintendent may direct. Thompson thereupon tells him to dowel the coping. Is it alleged that Thompson required anything not necessary to the proper and permanent construction of these walls? That "heavy stone, or the heaviest stone he could procure," was better material than he agreed to furnish; or that dowelling was unnecessary? Not at all; no such allegation is made. And if it were made, it would be, if not contradicted by the evidence, certainly very far from being sustained by it.

The items which make up the amount of this portion of the claim are eight, of which seven are mentioned by Gilchrist, who measured the work, in his deposition. (Rep. 253, p. 127.)

In reference to the quality of the work, this witness says at the place cited, in substance, that he saw that some of the coping was dowelled with locust pins, and presumes it was all dowelled; that the stone, or the greater part thereof, used in the Deep Hollow bridge are not of good quality, but are [in 1827] crumbling; that he believes the rest of the coping to be good, but has not examined it. This is all he says in this place on the subject; the rest of the coping he speaks of here forms no part of the present claim. On pp. 128, 129 he speaks of the value of the coping: none of it was worth more than $1 per foot, except that on the bridge opposite Mrs. Gooding's, which was worth $2, and that might have been made just as substantial as the rest for the same price. Now the rest were satisfactory to the superintendent, and there is no evidence that he required this bridge to be better than the rest. Gilchrist's testimony then amounts to this: That the superintendent's requirements were satisfied by coping worth $1 per foot; that none of it was worth more, except one piece, which could have been made as good for that price; that one other piece had given away when he saw it, and that he had not seen the rest lately. This value, however, is stated under a 'condition: that Shepherd was apprised, when he commenced the work, that it was to be so furnished. Well, Shepherd was so apprised; both Thompson's notes to him are dated within a few months of the date of the contract, and two years before much of the work was finished; the coping of course was the last thing to be done. Thompson's testimony is to the effect that the coping of Deep Hollow bridge was bad. The rest of his testimony refers to coping of bridges not embraced in this claim, except as to one

item, the coping of the bridge over Mr. Shepherd's own mill-race, which Gilchrist did not measure, and says nothing about, but which Thompson says was done in a style which he did not require. Any one who reads the testimony will see that Shepherd was a man of some private ambition, as well as much public spirit, and will readily perceive why the bridge over his own mill-race was built in a superior style.

Thompson, then, proves only that one of the pieces of work was bad, and that another was better than he required; as to the six other items he is silent. Gilchrist proves precisely the same things, with the addition that the work was worth $1 per foot. Here is all the evidence cited by the petitioner, and I have been able to discover very little more, though that little throws some light on the subject. In the deposition of Jacob Atkinson, who was Shepherd's clerk and bookkeeper, (Rep. 253, p. 61,) he says Shepherd paid his sub-contractor for the parapet and coping at the Double Hollow bridge, at $2 50 per perch. There the coping was measured and paid for by Shepherd to his sub-contractor, as part of the masonry, and at masonry prices, and so unquestionably it was measured by Thompson, and paid for by the government.

Again, at page 63, the same witness says that Currin was paid $1 per foot for the coping of the bridge in front of Mrs. Gooding's, he quarrying the stone and laying it, and Shepherd doing the hauling. This looks as if the coping was an expensive thing, and it may be proper to notice that this coping is that which Gilchrist says could have been made quite as substantial at half its cost. If this be so, the coping for which Shepherd charges $2 would cost him fifty cents, besides hauling the stone, after it was quarried, and furnishing sand and lime to lay it. At the rate paid at Double Hollow bridge, it would not, perhaps, have cost quite so much.

It is, however, in our view of the question, quite immaterial what Shepherd paid for the coping, or what the coping was worth, provided it was not, as we contend it was not, beyond the requirements of the contract. But if the court should attach any weight to the testimony, showing that the coping, for which the government paid but masonry prices, $3 50 per perch, was in fact worth $1 per foot, then the court are requested also to take into consideration the fact stated by Atkinson, (Rep. 253, p. 60 et seq.,) that much, if not most of the masonry, for which Shepherd received $3 50 per perch, was done by sub-contractors for $2 50 and less per perch. It seems, however, too obvious for argument that it does not help the petitioner's case to show that any given part of his work is worth more than the average rate paid for the whole, and yet testimony to this effect is all that he relies on. No witness that he cites, and none that I can find, says the work was better than was required by contract.

I now proceed to notice a point that must have attracted the attention of the court. It is this: That while the only witness called for the petitioner to prove the amount and value of the coping fixes it at $1 per foot, the petitioner charges $2 per foot, and for so doing cites no better ground than that John McLure, and others, for some coping done by them, were paid $2 per foot, which is said to be "the gov

ernment price." (Doc. 202, p. 42.) This, I suspect, is the key to this singular claim; and the facts in relation to these charges for coping, if investigated, would prove to be as follows: John McLure was one of the earliest who petitioned Congress for payment according to Thompson's measurements, and an act for his relief passed at the same time with that for Shepherd's. It did not, however, prescribe the amount, but referred the settlement to the treasury. Thus his claim came before the new administration which went into power on the 4th of March, 1825; and the new Secretary proved to be more liberal than his predecessor, who had adjusted Shepherd's account in advance of the act for his relief. It so happened, moreover, that there were two circumstances in McLure's favor: First, there was in his contract no provision for coping, so that he could with good conscience claim for it as extra work, and the Secretary allowed it. Secondly, he had been paid in full for mason-work according to Thompson's measurement, and it may readily be supposed that the Secretary might be willing to credit him with an item which had already been paid for when he would not have made the payment if the thing had been res integra. His case bore more analogy to that of Shepherd's sub-contractors than to that of Shepherd himself. So McLure was allowed the amount of the difference which stood against him on the books of the treasury, and was paid for coping at the rate he charged. McLure, as stated in the Auditor's report on his claim, was the first who was paid for coping, and upon this precedent sundry other persons have been paid at the treasury for coping, probably including some who, like Shepherd, were bound to cope their walls, and who, like him, had already been paid for as a part of their masonry. Shepherd never claimed for coping until after McLure had been paid for his; and I venture to say, but for the success of McLure, never would have made such a claim. He now cites McLure's case not only as a precedent for paying for coping, but as a precedent for the allowance of $2 per foot for it, while his own best witness swears it was worth but $1.

Although I cannot believe that the court will sustain this item of claim, or hold that the coping done was beyond the requirements of the contract, yet I must suggest one other difficulty in the way of its allowance.

Several of the bridges on which this coping was done were built and coped by sub-contractors. (Atkinson, Rep. 253, pp. 60, et seq.) Shepherd paid these men, on Thompson's measurement, for more work than the commissioners were willing to credit to Shepherd; but in the settlement made in 1825 Shepherd was allowed credit for the full amount overpaid the contractors. There is no intimation, anywhere in the evidence, that I have seen, that these sub-contractors had any claim upon Shepherd beyond the amount due them according to Thompson's measurements. This has been satisfied in full by the United States; and the question is, whether, in those payments, the coping has not already been included. Thus, Shepherd claims for coping the bridge over Wood's run, (466 feet, at $2,) $932. The government has already paid Shepherd (Doc. 202, p. 46) $1,499 78,

more than the bridge amounted to, on his allegation that he had paid his sub-contractor for so much work. If this payment to the sub-contractor by Shepherd included the coping, of which there can be no doubt, then the government, in reimbursing Shepherd, has paid for the coping. The same is the case with Deep Hollow bridge and the bridge opposite Gooding's. I think it clear that Shepherd can receive no more from government, on account of any one of these bridges, until he proves that the work, including coping, amounts to more than the government has already paid him for it.

The last item which I shall notice is the second in the petition; but as it has no connexion with the contract under which all the others arose, I have reserved it until they were disposed of together.

Shepherd was a contractor for making a portion of the national road. He desired to change the location of the road, in passing through his own property, with a view to his own interest, and, as the length of the road would be increased, he, in some form, which is not shown, but which is admitted by petitioner, agreed to make the increased distance at his own expense. The location was accordingly changed in 1819, (Rep. 253, p. 48,) but when the road was finished, either Shepherd or his sub-contractor was paid for the whole distance, no notice appearing to have been taken of Shepherd's agreement. When the commissioners went out, in 1820, they measured the two routes, and reported that the one adopted at Shepherd's solicitation was 53 poles longer than the original, costing $1,490 62 more, and the amount was charged against Shepherd on his masonry account, which was still open. In 1824 Shepherd employed a measurer to ascertain the increased distance, and he reported it at 38 poles only, whereupon the petitioner claims the difference, 14 poles, worth $406, as erroneously charged.

The difference arises in part, if not entirely, from the fact that the commissioners measured one line as the original route, and Shepherd measured another and a different line. The commissioners followed a location made in the year 1807; Shepherd followed a location which he contended had been made by Colonel Williams about the year 1816 or 1817, passing by a noted hackberry tree. The commissioners, in their report to the Secretary of the Treasury, (Rep. 253, p. 47,) state as a fact that Colonel Williams had no authority to make any change at this point from the location of 1807, and that there is no vestige of evidence that he ever obtained the approval of the President to the hackberry route, as it was called. They therefore took the difference between the route of 1806 and that of 1819, and reported the difference to the treasury, with a plat of the locality. The treasury unquestionably had plats of the road and of all changes made by Williams, and must have known at once which of the routes was the one established when the deviation was proposed. As this has entered as an item into the account stated by the treasury, under the resolution of 1824, and adopted by the act of 1825, it is submitted that it rests upon the petition to prove error by establishing the location of Williams in 1816, and this the testimony cited utterly fails to do.