OFFICIAL DECISIONS.

DECISIONS OF SECOND COMPTROLLER.

SOLDIER'S PAY.

[The references are to volumes in the Comptroller's office.]

No crime except desertion forfeits the pay of a soldier, except upon sentence of a court-martial, unless, in consequence of the crime, the soldier is withdrawn from service. Vol. xv, p. 448.

When a soldier, who was discharged on the expiration of his term of service, claims pay and clothing, his name not appearing on the regimental pay-roll for the time embraced in his claim, the accounting officers will require the production of the descriptive certificate of his discharge, as the surest evidence that the claim has not been paid by the paymaster.

When the witnesses required by the regulations, to payments made to soldiers can not be had, other satisfactory proof of the signature may be received. Vol. xiv, p. 50.

A receipt by mark, witnessed by two paymaster's clerks, is a substantial compliance with the regulation. Vol. xiv, p. 75.

When a soldier is discharged, and his account settled and paid by a paymaster, the payment purporting to be in full, that payment is to be considered final, unless shown by conclusive testimony to have been erroneous. John A. Powell's case, January, 1848.

When, from the situation of his company, or the nature of the service, a soldier can not receive his discharge, when his term expires, and is from necessity retained in service, he is to be paid up to the time of his actual discharge. Vol. vi, p. 149.

A soldier discharged on habeas corpus as a minor, forfeits all pay and allowances previously due, both by the regulations of the army, and general principles. Vol. xv, p. 38.

When an officer or soldier is furloughed, in anticipation of his discharge or the expiration of his term of service, he can not claim for the balance of his term both his travel pay and his pay as in service. Lieut. Fellnagle's case, and W. S. Thompson's case, Oct. 19, 1848.

A soldier, who is taken prisoner by the enemy, is entitled to his pay and allowance during the time he is detained, and to traveling allowance from the place where he is released to his home. Volunteers, however, are not, under such circumstances, entitled to compensation for use and risk of horses. Vol. xii, p. 429.

A private soldier of militia or volunteers, who is illegally and against his will discharged from service, is entitled to his pay up to the time of the discharge of the company to which he belonged, or to the expiration of his term of enlistment. W. C. Hayse's case, June 16, 1849.

A soldier under arrest by the civil authority on a criminal charge, will be entitled to his pay for the time he was in custody, provided he is tried and

OFFICIAL DECISIONS.

acquitted, or discharged without trial. Case of Dennes Clary, January 8,

1844.

DECEASED CLAIMANTS.

In order to show that the person claiming money due a deceased person from the United States, has a legal right to receive it, he should produce and file with the disbursing officer making the payments, the original letter of administration, or a copy thereof duly certified, or an official certificate from the clerk of the court from which it issued, that it appears by the records of said court that he has been duly appointed, and is legally empowered to act as administrator on the deceased person's estate. P. 184.

Vol. xii,

Where the balance due a deceased person is paid to an administrator deriving his authority from a court of competent jurisdiction, though obtained by fraudulent means, payment will not be made again when claimed by the true representative of the deceased. But where payment is made to an administrator whose authority is derived from a court possessing no power to grant administration, the legal representatives of the deceased have a valid claim on the government for the money. When the jurisdiction of the court granting the power is denied, and the question is one of fact merely, such as the residence of the deceased, etc., the most conclusive evidence of the want of jurisdiction will be required. Philip Robinson's case, April 10, 1851.

In the case of a gratuity granted by act of Congress to the relatives of deceased persons, the collateral relatives, whether of the whole or half blood, should participate equally, in the order pointed out in the act. Dec. Sec. Compt. Nov. 19, 1830.

When the amount due from the United States to a deceased person has been paid to one claiming to be the only brother of the deceased, upon proof that was then deemed satisfactory that he was the only brother, and that there was no widow, and other claim for the money is presented by a person claiming to be the widow, the clearest evidence should be required of the fraud and perjury of the proof on which payment was made, of the absence of all knowledge of it on the part of the second claimant, and of her right as the widow, before the money is paid again. Vol. xv, pp. 11, 173.

Questions as to the right of the whole or half blood to inherit balances due deceased persons, will be determined in conformity with the law of the State of which the deceased was a citizen. Sergeant W. C. Baker's case, September 22, 1849.

The government do not recognize an administrator appointed without the consent of the heirs of the deceased. Vol. iii, p. 37.

Where arrearages are claimed by an executor, for the benefit of others, either the will should be probated in the county where the deceased lived,

OFFICIAL DECISIONS.

or those interested in the trust should signify their assent that the amount should be paid to the executor without probate of the will. Vol, xv, p. 73. Payment of an amount due a deceased person for articles purchased by the Navy Department, may be made to the guardian of the children of the deceased, where it appears by the certificate of the probate court that the wards of the guardian are the sole heirs, and also that the debts of the deceased have been paid, and the estate closed by a settlement of the administrator's account; otherwise, payment should be made to the administrator. Vol. xiv, p. 206.

Arrears due a deceased soldier may be paid without administration to the widow, child, father, mother, brothers and sisters, but not to more remote heirs; and no after application for the benefit of creditors will be recognized.

Arrears of pay may be legally paid to the mother of a deceased soldier, he being an illegitimate son, leaving neither wife nor child.

A soldier can not, by a will, transfer his right to extra pay or land; but can his arrears of pay.

LAWS, REGULATIONS AND FORMS.

CHAPTER XXVI.

EXTRA PAY-ARMY AND NAVY.

"AN act to amend an act entitled 'an act supplemental to an act entitled 'an act providing for the prosecution of the existing war between the United States and Mexico, and for other purposes,"" approved July 19, 1848,1 contains the following section:

SEC. 5. And be it further enacted, That the officers, non-commissioned officers, musicians and privates engaged in the military service of the United States in the war with Mexico, and who served out the term of their engagement, or have been or may be honorably discharged-and first, to the widows; second, to the children; third, to the parents; and fourth, to the brothers and sisters of such who have been killed in battle, or who died in service, or who, having been honorably discharged, have since died, or may hereafter die, without receiving the three months' pay herein provided for-shall be entitled to receive three months' extra pay: Provided, That this provision of this fifth section shall only apply to those who have been in actual service during the war.

AN ACT for the Relief of the Widows and Orphans of the Officers, Seamen and Marines of the Brig-of-war Somers.2

Whereas the United States brig-of-war Somers was foundered at sea, in the offing of the harbor of Vera Cruz, while engaged, under very hazardous circumstances, in the prosecution of hostilities against an enemy of this republic; therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the widows, if any such there be, and, in case there be no widow, the child or children, and if there be no child, then the parent or parents, and if there are no

1 U. S. Statutes at Large, vol. ix, 247.

2 Ibid, vol. ix, 331.

LAWS, REGULATIONS AND FORMS.

parents, to the brothers and sisters who were minors and under the age of eighteen at the time of such loss of the officers, seamen and marines who were in the service of the United States, and lost in the United States brig-of-war Somers, shall be entitled to and receive, out of any money in the treasury not otherwise appropriated, a sum equal to twelve months' pay of their respective deceased relations aforesaid, in addition to the pay due to the said deceased at the date of the loss of said vessel.

Approved, August 14, 1848.

By a joint resolution of June 16, 1848,' the Secretary of War was directed to pay the regiment of mounted troops which was mustered into the service by Colonel Curtis, in 1847, and discharged before joining the army, the pay and allowances (including traveling allowances) of mounted men, from the time when the several companies reached San Antonio until they were mustered out, and pay and traveling allowances on their return home; also, to the companies of Captains Smith and Hill, until they refused to be mustered out or were disbanded; also, to pay said regiment for horses lost for want of forage.

A general appropriation act of September 30, 1850,2 makes additional provision for the payment of Texas mounted rangers, and directs that the accounts of the companies commanded by Captains Hill, Smith, Roberts, Sutton, Ross, McCulloch, Johnson and Blackwell, who were retained in or called into the service by the Governor of the State, should be audited and settled by the accounting officers of the treasury.

By the first section of "an act making appropriations for the support of the army for the year ending the thirtieth of June, one thousand eight hundred and fifty-one,"

1 U. S. Statutes at Large, vol. ix, 335.

2 Ibid, vol. ix, 559.