Vdrns a Duke University Libraries DIGKEST COMPTROLLER'S DECISIONS, !\ some of the leading ca + v,* presented to iii.m foi; Vtlkment! bonus secundum aeqtturii ■> bonutn jttdicat RICHMOND VA.: SMITH, BAILEY & CO., PRINTERS. 1863. George Washington Flowers Memorial Collection DUKE UNIVERSITY LIBRARY ESTABLISHED BY THE FAMILY OF COLONEL FLOWERS 'Ht riAJ"<-i»>' w '- v -' — PREFACE Having learned during a life of varied experience, and of constant and assiduous study, the great importance of having doubtful and mooted ques- tion settled, and that certain land-marks should be erected, by which the Ship of Life or of State, may be steered through the breakers and quick- sands of human vicissitude, I have long since come to the conclusion that there can be no rule of higher excellence than that we should avail ourselves of whatever lights of experience we may find to cast their rays across the uncertain path of life, to illumine and direct our couuee in searching ing after truth and justice. One of the wisest of men has enunciated the immutable axiom, "misera est servitus ubi jus est aut vagura aut incertum." Adopting this maxim for my guide. I have endeavored, to the best of mv humble ability, to decide upon and establish certain determinate rules in the interpretation of the law, by which those may be directed who have to en- force them in practice, even if future experience and subsequent legislation shall inculcate their modification, or their entire change. There is deep wis- dom, however, in the ancient maxim, "bonum est stare decisis, si non manifeste falsis aut iniquis," as well as in that higher moral adage, " judex bonus secundum cequum et bonum judicat," and the equally wise principle, " boni judicis estlites dirimere." The dictates of patriotism should inspire and impel every good titizen of our Confederacy, to offer up his tribute upon the altar of his country's good, and to exert hib utmost capacities to take care, like the devoted sons and sires of Rome, "ne quid detrimentum respublica capiat." Conscious, however, of the infirmity of human reason, and the fallibility of the human intellect, I can only profess to have exerted my best ability in elucidating and resolving the doubtful points that have presented themselves, (whether correctly, or not, future experience must evince,) under the solemn conviction, which the knowledge of life is daily and deeply inculcating, that " Deus solus aapiL" I EWIS CRUGER, t 'omptrolh '■■ •% V *3> . «-f»* J* . icJSf DUTIES OF THE COMPTROLLER. It is made the dmty ti tu-j-Cocipt roller, by act No, lb (approved t'jtii unrv 21,1861,) 1st. To superintend the settlement of the public accounts, and to receive these accounts from the Auditors with the voucher? and certificates for hit deci&ion thereon. 2nd. To countersign all warrants drawn by the Secretary of the Treasury whreh are authorized by law. old. To report the official forms of papers in the different offices for collecting the public revenue. •lth. To provide for the regular and punctual payment of all moneys collected. 5th. To direct prosecutions for all delinquencies of officers of the revenue and for all debts that are or shall be due to the Confederate States. This act imposet upon the Comptroller the duties of four distinct bureaus under the United States Government — viz: those of IstComptrolIer, 2nd Comptroller, Commissioner of Customs, and Solicitor of th« Treasury. Act No. 128, (approved May 16, 1861,) declares his decisions under that act to be final and conclusive. Such was the decision of the United States Supreme Court, as to the effect of these decisions upon the Executive branches of the Gov- ernment. The United States act of March 3rd, 1809, makes it hi9 duty, whenever he considers delays injurious in the settlement of accounU in the Auditors' offices, to direct them forthwith to settle any particular accounle, and to report the same for his final decision. *■•»■ DIGEST COMPTROLLER'S DECISIONS, 1 N SOME OF THE LEADING CASES PRESENTED T( ) HIM FOR FINAL SETTLEMENT. 1. Vouchers. Original vouchers must be produced to the accounting officers. Duplicates cannot, be admitted unless accompanied by satisfactory evidence of the loss or destruction of the originals. 2. Purchases. The specific purpose for which all articles are purchased, or used, should be stated in, or noted upon, the voucher to enable the accounting officers to designate the proper appro- priation to which they should be charged. 3. Comptroller's Decisions. In accordance with the case of Major Wheaton, decided at Washington, "The settlement of an account by the proper accounting officers is final and conclusive, so far as con^rns the Executive Departments of the Government. If the individual, whose account has been thus settled, conceives himself injured by such settlement, his recourse must be to the Judiciary or to Congress." t# the case of Gen. Taylor, the Hon. Eoger B. Taney says: "The decision of the Comptroller is conclusive upon the Executive branch of the Government." ft 4. Assigned Claims. , » As to the assignment of claims against the Government, the acts of the United States Congress of 2d July, 1846, and the 26th of February, 1853, do 'not refer to such eases as the arrears of pay due to soldiers, under certificates given by duly authorized officers, for a certain and fixed sum, which, being in the nature of liquidated debts, may be assigned at any time, by power of attorney. Those acts refer only to doubtful and uncertain claims prosecuted before Congres- or the Departments, which cannot be assigned until the claim is settled and liquidated and a warrant issued. The object of the law was to preclude the frauds of lobby agents. 5. Sheriff's Fees, etc. (In a case of the Sheriff of Henrico County.) The ^es established by the laws of the different States for the support of prisoners in jail, are to b<" allowed in cases of Confederate States prisoners, when those fees do not exceed the amount of commutation rations fixed by our Army Regulations, which, in some cases amount to seventy-five cents per day, whilst the claim in this case is but fifty cents per day. 6. Certified Copies. (In the case of General McAfee, agent for the State oi' Mississippi.) All certified transcripts of documents from the office in which they are recorded, (whatever that office may be,) are to be allowed as good vouchers, and of higher validity than telegraphic dispatches, which have been decided to be of little or no validity. 7. Assignees. A claim against the Government, in the hands of an as- signee of the original creditor, is subject to all the equities existing between the assignor and the Government, and those equities, so far as they are in favor of the Government must be satisfied before the assignee can take the benefit of his assignment. • 8. Officers or Claimants in Arrears. No person can receive compensation for his services to the Government when he is in arrears to the Government, until he shall account for, and pay, the amount for which he is liable. (See act 25th Jan., 1828.) 9. Purchases Authorized. Wheii a purchase is made by a duly authorized officer of the Government, the party from whom he purchases is not bound to show .what disposition that officer has made of the property. 10. Purchases not Authorized. When a purchase is made by a person, or officer, claim- ing to be duly authorized, but not so in reality, the Govern- ment is not bound to pay for the property unless the vendor shows that the property purchased has been actually used in the public service. 11. Officers Exceeding their Powers. When an officer exceeds his powers, he becomes indi- vidually responsible, and cannoi bind the Government by his illegal contract. 12. Property Illegally Destroyed. The Government is not liable for property illegally des- troyed by private soldiers not acting under orders, and no voucher for payment of such damages by a disbursing officer can be allowed in the settlement of his account. 13. District Attorneys. In the accounts of District Attorneys for their per diem allowance whilst attending the sessions of Confederate States Courts, charges for Sundays cannot be allowed. 14. Omission of Middle Name. Such discrepancies on the Pay Rolls, as the omission or insertion of a middle name, or the initial letter of that name, are not such defects as to require their suspension. In the case of Gaines vs. Stiles, 14 Peters' Reports, page 322, it was decided that, "The law knows but one Christian name, and the omission or insertion of the middle name, or the initial letter of that name, is immaterial, and it is com- petent for the party to show that he is known as well with- out, as with, the middle name." 15. Difference in Spelling. Nor is a slight difference in the spelling of a name a sufficient cause for suspension. The spelling and pronun- ciation of proper names are entirely arbitrary with families, as originally established by themselves. And it cannot be expected that the Pay Kolls will be critically accurate in these matters, especially in time of war. 16. Officers Ordered to Report for Duty. When an officer is ordered to report for duly, and the officer in command to whom he is directed to report, informs him that he has no need of his services, he is still entitled to duty pay until otherwise ordered by the proper authority. Such duty pay is to- commence from the date of his accep- tance?, or leavirjg his domieiL (or station,) to make such report. 17. Pay of Collectors of Customs. Where salaries are limited to receipts from fee*, if, during liit fiscal year, a sufficient amount has been collected by a Collector of Customs, to reach the maximum of his compen- sation, he is entitled to that compensation without reference to the particular quarter, or month, in which such fees arc collected. 18. Transportation in the Ordnance Department. The transportation of such articles as are materials for manufacturing ordnance, powder, etc., would seem to be a natural and necessary incident to their purchase and use. Transportation in the Ordnance Department, is recognized by paragraph 1341, (item 10th,) of the Army Emulations. I therefore think the transportation of iron may be paid by the Ordnance Department, and charged under the head of u purchase of pig and rolled iron" The moving of cannon from one ordnance depot or store, to another, may be paid and charged under the head of " Ordnance /Service:' Para- graph 958, of Army Eegulations, docs not seem to refer to transportation of materials, etc., from which to manufacture " army supplies ;" but only to providing " quarters and trans- portation of tlie army,' 1 ' 1 itself, and its necessary supplies therein specified, such as " clothing, equipage, food, fuel. &c/' 19. Soldiers Travel-pay and Rations where Transportation is Furnished. Under the United States act, of May loth, 1846, volun- teers are entitled to one clay's pay and subsist an ce for every twenty miles travel to the palace of rendezvous, from their place of residence, and mounted men are, in addition, entitled to forty cents per day for the use and risk of their horses, and the legal rate of forage. Under the United States act, of January 11th, 1812, sec. 22, and act of January 29/A, 1818, sec. 15, soldiers honorably discharged, are allowed one day's pay and rations for every twenty miles travel from the place of discharge to their place of residence. Confederate Slates act No. 153, May 'list, 1861, allows to mounted volunteers forty cents per day for the use and risk of their horses for every twenty miles travel from the place of discharge to the place of enrollment.''' These rates may there- fore be regarded as established by law, for em oiled or enlisted men to the place of rendezvous and for discharged men to their place of residence or enrollment. 20. Claims of Disc v Claims of discha quentto pay- ment on certificate of hould be audited through Hie Second Auditor's office, when the rolls in these cases are either in that office, or the Quartermaster General's office, and # easily accessible %o the Clerks of the Second Auditor. Whilst to Quartermasters at other point?, these rolls would not be accessible. 21. Interest not paid by Government. The ancient laW maxim of u nulla usura occurrit regi" has been the gnieral rule of all governments, and has been re- peatedly so decided, a? based upon the principle that the government is presumed to be alivays willing and ready to pay its obligations. To this general rule the only exceptions appear to be where interest is due by government contract, or where the claimant has been compelled to pay interest for the benefit and .business of the government, as where a State has been compelled to raise money upon interest to suppress hostilities, etc. 22. Eight of Impressment. The exercise of this right in time of war, results properly from the delegated sovereign right of " declaring and waging ujar." It is also claimed as resulting from the risht. of " eminent domain. 1 ' 1st. The right of eminent domain (or dominion,) is the supreme control which appertains to sovereignty, over the entire property within the limits of the State, and necessarily involves the right to take the property of citizens for public use when deemed essential to \\\q common welfare. Vattel 10 defines it to be "the right, which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained'in the S'ate." He then proceeds to declare that "every Prince who is truly sovereign is invested with this right, when the nation has not excepted it." — Vatel b. 1, ch. 20. As our governments are but limited agencies, they can only by delegation, exercise the right of eminent domain. This right is understood to be delegated by that clause of the Constitution which declares that private property shall not be taken for public use without just compensation. This provision obviously confers (as a "negative pregnant.") and as shown by the debates of the Convention, the ri^ht to take such property with, just compensation. 2d. This right in time of war, however, is more appro- priately derived from the delegated sovereign power of declaring and waging war, and it may be exercised whenever ("ex necessitate belli") it is found necessary for sustaining, and saving the troops from suffering, and to enable the gov- ernment to prosecute the war. 3d. The exercise of this right is recognized in two of the United States acts of Congress, which declare that property coming into the military service of the United States, either by contract or impressment, should be paid for according to its value at the time of coming into the service. It is there- fore evident that our government possesses the right to exercise this power, and it is proper that some rules should be adopted to regulate the taking, and paying for, such supplies under the orders of some commanding officer, rather than to leave the seizure, (which is inevitable in cases of necessity,) to the unbridled license of the soldiery. The following rules were adopted on the 1st of January,*1862 : 23. RuUs Adopted by the Comptroller as to Property Taken and Used by Confederate Troops. 1st. Whenever property has been taken and used by tin- troops, as supplies, by order or approval of a commanding officer, (including any commissioned officer in command,) as shown by his signature; or in ease of a General, by that of his Adjutant, or that of a Quartermaster, Commissary, or other authorized officer; or when an appraisement made of such property is approved by such officer, a fair and just compensatson should be made for the same according to the appraisement, (if not excessive,) or according to the approval (when not appraised) under the head of stipplies for the Army. 11 2nd. When property has been simply destroyed, it is to be regarded as a claim for damages, which should be presented to Congress for allowance, (as there is no law nor appropria- tion for such damages.) In such cases of property destroyed, (whether by order of an officer or not,) or where no law pro- vides for the proper payment thereof, the claims and testi- mony should be presented to the Attorney General, to be by him reported to Congress, in compliance with the act of Con- gress, No. 264, approved August 30, 1861. 3rd.' When fencing ox other wood has been used, appa- rently, or on reasonable presumption, for fire-wood, the same should be paid for on appraisement, or approval, as above stated. 4th. Where any building has been used for a hospital, it % is proper that injuries to the building, whilst so used, should he paid for on such appraisement approved by the Surgeon in charge. (To be confined strictly to injuries resulting to such building from, its actual use as a hospital, to be shown '"/ appraisement.) 5th. In case the approval of a commanding officer, or other authorised officer, cannot be obtained lor such supplies, such claims should be presented to Congress, or to some ex- piring officer who may be appointed by the Secretary of War. 24. Horses Killed in Action. It appears to be a sufficient compliance with the spirit und intent of the 7th section of act No. 48, that two or more officers should certify that they knew the horse at the time of his entering tli« j service, and that they then, at the request of the oi :i mated his value at some certain sum. This may be regarded as constituting, in this time of war, a virtual, though not a formal appraisement, which the law does not in fact require, but merely speaks of an "ap- praised value," without prescribing how such appraisement is to be made. No such provision was made by any United States act upon this subject, which acts, on the contrary, require only u satisfactory proof" of the value. The evident object of the law is simply to ascertain the value of the horse at the time of his entering into service. And if any two officers had at that time, at the request of the owner formed an estimate of his value, the mere time of formally reducing such estimate to writing is of no consequenc. 25. Extra Duty Pay, January 1st, 1862. The obvious construction of paragraph 882, of the Regula tions is, that the lower rate of extra pay viz : twenty-fire cento per day is intended for the lower grade of employees, " labor- ers and teamsters," and the higher rate of forty cents per day is intended for the higher grades of " mechanics" and other skilled persons, under which designation Druggists and Clerks, must come. They are to be paid by the Medical (pr Purveyor's) Disbursing Clerk. "Cooks and nurses," may, by the Regulations, be paid by a Quartermaster in the ice of such disbursing officer. 26. Lost Certificates. * 1 11 eases of the loss or non-receipt of certificates of pav due, the claimant should make affidavit before a Justice, 1 to be certified by the Clerk of the Court,) stating the loss of his certificate— that he is, and has been, unable to procure a duplicate, for reasons therein setforth — and that he has re- ceived no part of the amount claimed. He should also pro- duce the certificate of some Confederate # States officer of his identity, and of his having served during the time for which he clai 27. Commutation of Transportation in lieu of Furlough. The act of December 11th, 1861, entitles the soldier to transportation "home and back." This obviously confers the right of travel from the point at which he received his certificate of being so entitled to Ms commutation, or from the place of his death, (payable to his heirs under act of 15th February, 1862.) 28. As to when Pay of Officers Commences. The general rule established by various decisions of the Comptrollers at Washington, and sustained by continued practice, was that officers pay commences from the date of their acceptance, as being the evidence of their liability to duty. But it was also properly decided that where it is otherwise shown at what time the officer's service commenced his pay will commence from that date, because his perform- ance of duty is an actual acceptance of the appointment. It was also decided, in other eases, that where an officer is pro- moted and the commission specifies that it is to take effect from an antecedent date, he is entitled to the pay 1 of the superior grade from such antecedent date, without regard to the exact nature of the duty performed by him in the inter- mediate time. (Lieut, Jenkins' case, September, 1836.) 13 29. Commutation of Clothing claimed for Deceased Soldiers. 1st. When the soldier died after the passage of the act of 8th October, 1862, (which prohibits the .future commutation of clothing, but allows " any balance of clothing due at the end of the year" to be paid for,) such soldier, if he had not received "either his clothing or its commutation, was entitled to the value of such clothing to the time of his death, in- cluding the value of clothing allowed by that act, pro rata, in proportion to the length of time he survived the. said Stli of October, 1862. That act allows the soldier clothing in kind, and as he died without receiving it, his claim is clearly good for its value. 2d. If the soldier died before the 8th October, 1862, bis claim is, of course, only good ibr his commutation under previous laws. . 3d. If the soldier died after the 8th October, and after receiv- ing his last six months clothing (and his previous clothing) or its commutation under previous laws, he must be regarded at settled with, according to the contract under which he enlisted, and could not be entitled to the benefit of the act of 8th October, 1862, which only provides for the payment of any balance of clothing due at the end of the year. If the soldier was paid his commutation at the commencement of his last six months, (as has been the usual practice,) there could, of course, be no balance due him which he could claim under the provisions of this law. 4th. Paragraph 1033, of the Army Regulations, allows a greater amount of clothing for the first year, than' the two subsequent years. The obviovs intention was to require -the overcoat, extra coat, etc., to last through the three years service. The issue of clothing in kind, not being specifically directed until October 8th, 1862, that date must be taken as the commencement of the first year of such issue (or its com- nmtation,) if commutation had been previously paid up / that lime. If it had been previously paid up to aforesaid, beyond the 8th of October, the first year (under thai act,) would begin at the end of such period. 30. Appraisements under the Impressment Act. Where the appraisement was. made previous to the action of the Board of Commissioners for establishing prices under the Impressment Act of March 26th 1863, such appraise- ment duly certified by the impressing officer or Quarter- master must govern, especially as the act expressly declares that in case of disagreement, "the decision of the umpirt sliali bejinal;" and th< 2d sect ion authorises; the impre: officer "to pa\ the owner the '•<nall be entitled to the same pay now allowed by law to musicians, regularly enlisted: Provided, That no such per- sons shall be so emplo}ed except by consent of the command- ing officer of the brigade." This act allows to cqjored persons* the same pay, but says nothing as to bounty, which has always been regarded as the reward offered to citizens or white persons for "volunteering or enlisting" in the army. The term " employed" which is here used in reference to colored persons, shows the distinction made between " enlisting" and being hired or u employed" Besides this, the restriction imposed by this act, subjecting these persons to the consent or the Brigadier G-encral. also shows the dis- 16 fcinction b and the volunteering 01 enlisting of a citizen or while person. This bounty cannot, alldwed to a negro. 95. Conscripts not Entitled to Bor , liounty has ajwa \ng or enlisting in1 But where the operation into the service without volui I or enlisting, it be regarded as a compulsory .. for the army, and in such case the soldier can hardly be considered as entitled to this rewi The inq ui ry ha s pts w ho elect to enter the i !qrpa are . i tq bouh the act of October 2d, 1S62, which declares that "ii person who has. or is about to be, carolled for ser\ ■'■■ army, at anytime before being assigned to any combi shall declare to the enrolling or commanding officer that he prefers being enrolled for e in the Navy or M Corps, it shall be the duty of the said officer to enroll person for the service which he ma , and to transmit to the Secretary of the Navy a list 6f pel tiled." This act merely gives to the c Choice of the branch of service into which he may prefer to enter: j.usfas the 13th section of the Conscript Act, (April 16th, 1862,) permits all persons (simply as a favor) to volunteer info com- panies then in the service, previously to their being made conscripts by that act, and being as such enrolled. In such case if they shall so volunteer, they become, of course, entitled to bounty. The 7th section of the conscript act only authorizes soldiers then in the service, (who, of course, were originally volunteers), who arc continued in service by ttial act, and who had not received their bounty, still to receive it But there is no lair, and no just conclusion of reason that seems to allow bounty to conscripts already enrolled as such, whether they have selected, or not, one branch of the service, or one company, in preference to another. 36- Courts Martial. Paragraph 1021 of the Army Regulations, allowing com- pensation to officers for their attendance upon Courts Martial, does not include privates or non-commissioned officers. The payment of this compensation to officers is to be made upon the certificate of the Judge Advocate, under paragraph 1026 of the regulations. 37. Orders for Transportation. Certified copies of orders for transportation are sufficient vouchers for Quartermasters, where the signature is verified or certified by a Confederate States officer* orbyan authorized officer of one of tne Departments. This is rendered neces- sary by the fact that these orders for transportation, cany, at limes, extend throughout tlte entire Confederacy, and thus ren- der it hnpossible to leave the original order with each Quar- termaster. 38- Re-enlistment and Conscription If a soldier re-enlists, or is conscribed, at the end «>i bis term of service, the first ^earofauch re-enlistment or cotiacrip- tiou is the first year under <> new contract, and the soldier is entitled to such allowances as are authorized by the regula- tions for the first year o!' each soldiers service. The com- mencement of sucu. service, of course, dates Prom the date of the re-enlistment or conscription. 39. Payment of Bounty. Where the rolls show that pay and chilling have been received by the soldier, and no mention is made of bounty on any rolls, (either bounty or pay) nor any evidence can be found, from certiiicatcs or otherwise, that bounty has been paid, it may be taken for granted that it has not been paid, and may be allowed accordingly. 40. Mode of Calculating Pay. When a soldier, or seaman, serves a full month and ike frac- tion of another month, he is to be paid for the full month (whether it be February or May,) as a month of 30 days, and for as many clays as he has served in the other month, calcu- lated at the same rate of 30 days to the month, according to the regular pay tables. For instance, if a man serves all February and to the 12th of March, he is to be paid for a month of 30 days in February and for 12 days in March, the day he enlists and the day he is discharged being always included, whether he leaves at eight in the morning or at eight in the evening. If he serves less than a month he is to be paid for retry day he serves at the above calculation-rate of' the pay tables, allowing 30 days to the month t For instance, if he serves from June 25th to July 5th, he is to be paid for six days in June and live in July, or if from the 25th May to 5th June, his pay is for seven days in May and live in Jufte, or if he serves altogether 10 days, the calculation is simply is (at $15 per month,) as 30 daws are tu $>16, bo arc 1<> days to 41. Contractors. W Inn th-' Govern nient,- by its action, prevents the lull performance of a contract, contractors arc not entitled to he paid as for a complete fulfilment of the contract, but only for snob expenses- and losses as shall obviously and positively result from the interference of the Government. As where ;i contractor agreed to furnish a1 a certain point a certain number of w 6r transporting Supplies, and the order I «»r t Ih • movement of the troops was ooHaterraanded^ the eon- tractor can onlv be repaid his expenses incurred in effecting this. partial performance of his contract. 42. Claims of States. In cases of elaims by the different Stales against the Con- federacy, it is sufficient for the State to show that supplies tor the use of troops in the Confederal e service have beeu actually purchased and paid lor by the State lor that pur- pose. And in such State claims, the pay rolls receipted by the commanders of companies, and not -by the men, may be allowed, if thvyliacc fieeU allowed 'bij the Stale. 43. Certificates of Commanders of Companies. < lertiflcates of Captains, or officers commanding companies, should {as a genft&l ruh-) !><■ ;.co ( ,,.. H ft| sufficient evidence <>l the amount due to the soldier, unless they can )jc shown to be incorrect by the pay roils or other vouchers. 44. Soldiers Clothing Furnished by a State. The act of August 80th, 18(jl, provides that where "any State shall furnish to its troops and volunteers in the Con- federate service, such clotningj then the Secretary of" War is required to pay over to the (Sroverrior of said State, the money value of the clothing so furnished."' Under this act, hie War Department issued regulations of the 10th October, 1861. authorizing the payment to be made "on receipts produced h;j the State, signed by the commanding officer of the regiment, battalion, or independent company, certifying the number of men so furnished by the State." The Quarter- master General, having asked the opinion of the Comptroller as to the proper course to be pursued in settling these claims, it seemed to him to be advisable that the Governor of the 1M State should make a requisition tor the amount, and should furnish the certificates of the State Quartermaster General, or of the Quartermaster who furnished or issued the clothing to the troops. 45. Claims of Deceased Soldiers. Claims <>f deeeased soldiers who had enlisted before the passage of the net of 10th February. 1802, (which directs payment to be made to the heirs,) may be paid to iht admin- istrators, upon proper certificates, under seal of the Court. The opinion of the Attorney General of May 9th, 1862, re- gards this act as unconstitutional, so far as it interferes with the established principles of the law in relation to enlist- ments made previously to its passage. Those principles re- quired all assets to be paid to the personal and legal rspre- senUttives of the deceased. 46. Executors and Administrators. The production of the original will by the Executor, (before the granting of probate,) accompanied by satisfactory prooi of the signature of the Testator, is sufficient authority for the Executor to receive any amounts due by the Govern- ment to the Testator. 'As a general rule, the common law- does not allow an -Executor, before receiving letters testamen- tary, to dispose of any part of the estate, except for funeral expenses, nor to exercise any farther control than is necessa- ry to its preservation ; but no law prevents, or prohibits, his receiving debts due before probate granted. In England, and in some of our States, in trials at common law, the original will is required to be produced, and the probate alone is not regarded as sufficient evidence. In some States the will is required to be proved in Court de-uovo. even after it had been allowed by the Ordinary. 47. Mileage Charged by Marshals. 1st. The mileage charged by Marshals in serving pro- cess, is to be computed from the Court House at which each case is tried, to the residence of the person upon whom the process is served. 2nd. Marshals are entitled to mileage upon every ivrit or petition, whether served within, or out of the district in which the Court is holden, under the loth section of the act to establish Judicial Courts of the Confederate States. 3rd. The allowance of five cents per mile for the ' ; d,is* f'incr. actually travelled^ is held to signify the whoh distance 20 travelled both in going and returning by the most direct mail route. 4th. Writsof garnishment and petitions ol sequestration. come under the head of any " warrant, attachment, sum- mons, capias, or ■ 5th. Ji tii of twenty-five cent- for entry and en- doi» d each writ, in addition to the $2 for service, i> allowed by the laws of the State, it may be allowed' under section 15 of the above act, No. 83, (approved March 16th. •1861.) 6th. 11 the defendant is actually served with process at some point nearer than his residence, he can only be charged with mileage to and from that point, as being the "distance actually travelled." 48. Commutation of Clothing for the Militia. There seems to bo no reason why the militia, when browjkl into the Confi '■'. Tale service, should not be entitled to cloth- ing or its commutation. The act of March 6th, 1861, placed the militia, when called into service, on the same footing, as to pay and allowances, as other soldiers. The act of August 30th, 1861, allows "clothing for .the entire forces of the Con- federate Stales." I therefore think the militia are entitled to the value of clothing pro-rata, in proportion .to the time for which they are brought into service, or have actually served, equally with oilier soldiers, under the laws existing at the time of their being brought into service, and during their actual service. 49, Horses Lost in the Service. The Confederate States act of March 6th, 1861, allowing compensation ior " hbrses 'killed in actio,,." does not repeal the United States act of March 3rd, 1849, except in so far as it conflicts with the Confederate States act in reference to "horses killed inaction.*' The United States law is there- lore still in force. The 1st section of that act allows coin pensatioh to the extent of $200, for horses so wounded as to die, or when so wounded, are abondoned by order of an officer, or when they have died for want of forage, or when the rider is dismounted and separated from his horse and ordered to serve on foot, and his home is lost in conse- quence, or when the 'horse is lost from being turned loose to graze by order of the commanding officer, or is lost for want of transportation, or the dangers of the sea. The 2d section allows compensation for the value at the time of entering the 21 service of " any horse, mule, wagon, etc., whilst in the mili- tary service, either by impressment or contract" where such property is lost "by death, or abandonment or for want of forage, or by unavoidable accident.'' The 4th section extends the benefit of this act to any person who is the owner of such horse, gr his equipments, as well as to cases where such horse and equipments have been "lost, captured, destroyed, or abandoned in the manner above mentioned" — upon the owner making satisfactory proof, as in other cases. 50. Signing of Pay-Rolls. As the Army Regulations respecting payment on the rolls, declare that " when the receipt on a pay-roll is not signed by the party, the payments must be witnessed, and if practicable, by a commissioned officer," and as no mention is made of the party's math being required, it would seem to be a sufficient compliance with the regulation to have the attestation of the witness, together with the approval of the rolls by the officer in command of the company. It is, how- ever, advisable and proper that the soldier's or seaman's mark should be obtained, to render the receipt perfect and com- plete. 51. Signature of Officers to be Verified. Where the signature of the officer in command, sub- scribed to any certificate, or other voucher, is not known at the Quartermaster General's Department^ nor at the War Department, it should be verified by the affidavit of some disinterested person whose signature is known, or by the certificate of some Confederate States officer, whose signature is also known at some one of the departments. 52. Premium or Discount on Bank Notes, &c. If a Commissary, or other Government officer, shall have received Bank notes, or other funds, which may have ap- preciated in value above the Government currency, he should, in exchanging them for Treasury notes, charge him- self with the premium and deposit the same with some Depositary to the credit of the proper appropriation. The United States act of August 6th, 1846, as well as paragraph 896, of the Army Eegulations, forbid all officers to make any premium or profit, on the sale or exchange of public securities. And in case of unavoidable loss upon Bank notes, arising from a depreciation in their value, after the )*> officer had received them upon a careful ascertainment of their value at the time of their receipt, such officer should apply to Congress for relief. 53. Commutation for Furloughs. By the act of December 11th, 1861, (No. 806,) as well as by the conscript act of April 16th, 1862, the soldier is to "elect to receive the commutation at such times* the furlough would otherwise be granted," which time is, by the act of December, 1861, such as the Secretary of War may deem most compatible with the public interest." The time, therefore, is optional with the Secretary, and if that time (as regulated by the Secretary,) had not arrived, the soldier could not be entitled to make his election, and consequently not until then could he be entitled to the commutation. The above acts only refer to re-enlisted men, and seem to intend this furlough (or commutation) as a reward for re-enlisting, or a compen- sation for conscription. 54. Regulations of the War Department. Regulations of the War Department, made in pursuance of law, and approved by the President, are, by act No. 52, (approved March «6th, 186 1.) as binding as the law itself upon all concerned. 55. Forage. The certificate of an officer claiming forage, or its commu- tation, should state that the horse was actually kept for the public service. 56. Officers Suspended from Duty. When officers are suspended from duty only, they are still entitled to their pay and rations. 57. Officers Assigned to Commands. There is no law authorizing a Lieutenant, while in com- mand of a company, to claim the pay of a Captain. To entitle an officer to the pay of a higher grade, he must be actually appointed to that grade, and not merely assigned to its command. Pay follows the commission, and not the duty performed. 58. Extra Pay. No officer can be allowed extra pay for more than one service at the same time. 33 59. 1 Pay of Detailed Men, (Act of May 1st, 1863.* The act of May 1st, 1863 ?> allowing compensation not to exceed $3 per day in lieu of rations and allowances, seems intended to apply to men employed by the commander of a Department or District, or in some Military Bureau, on "the recommendation of the officer in charge of such men, and the approval of the commander, or Chief of Bureau, with the sanction of the Secretary of War.'' This employment of detailed men contemplated by the act, is generally con- sidered to be that of clerks and skilled mecJ/anics. 60. Chief Clerks in the Departments. Correspondence being the regular and u 'ex officio 11 duty of the Chief Clerks in the Departments, no extra compensation can be allowed therefor. The extra pay allowed to Chief Clerks by acts of Con- gress, is compensation for the eocfra duty of disbursing such funds as are entrusted to them for that purpose. 61. Marshals. Marshals are entitled to just compensation for transport- ing witnesses in enstodjj, as well as for the transportation of criminals, not exceeding the compensation allowed to Sheriffs by State laws for similar duties. 62. District Attornies. District Attornies are entitled to a fair and just compen- sation for extra services performed at the request of the head of a Department, when there are no fees allowed by law, or custom, for such services. 63. Collectors of Customs. Collectors of customs,, acting as Superintendents of Light- houses, are entitled to commissions upon disbursements made by them in that capacity, subject to the limitations of the 18th section of the act of May 7th,*182li. The act of 1799. authorizing Collectors to employ occa- sional Inspectors, and others in aid of the revenue, does not authorize them to employ persons to perform clerical duties in Custom-houses, and to pay them out of the revenue. 64. Pay of Civil Officers. . As a general rule, public officers in the civil employment of the Government, (including all the Departments,) are 24 entitled to the pay or emoluments appertaining to their offices, only from the time of entering upon the performance of their duties. 65. Congress. Joint resolutions of Congress, when regularly and legally passed, have all the effect o[ law, and are to he so regarded. But seperate resolutions of either House have no such effect, except as regulations to control their own proceedings. 66. Enlistments. Enlistments into the army made under the provisions of the various acts of Congress, must be regarded as contracts, and are to he construed according to the rules and princi- ples which regulate contracts generally. 67. Special Counsel. It was regarded under the United States Government as an established rule that any head of a department could, in his discretion, employ special counsel in behalf of the Gov- ernment. 68. Compensation. The term "compensation" has generally been regarded as equivalent to the word "pay" or "salary" and as not in- cluding "rations" and other "alloioances." 69. Extra Compensation. The United States acts of March 3rd, 1839, and 3rd March, 1842, forbid any person whose salary, pay or emolu- ment, is fixed by law, to receive any extra allowance or compensation, in any form whatever, for the performance of any public service, unless the same be authorized by law. 70. Persons Performing the Duties of Another. Where the incumbent of an office receives the salary affixed to it by law, no person performing the duties of such office can receive any compensation therefor. 71. Construction of Laws. Where any act of Congress has, either by actual decision, or by continued usage and practice, received a determinate construction, which has been acted upon for several years in succession, a change in this construction can only be justified by the evidence of palpable error or injustice* The declara- 25 tions or remarks of members of Congress, in debate upon the passage of a law, cannot be received as evidence of the intendment of Congress so as to control, or countervail, the just, obvious and legal interpretation of the law. 72. Assignments. An assignment of payments due under a contract with the Government, accompanied with due notice to the proper officer, is to be allowed, if not prohibited by the contract. If such assignment should be legally rescinded, due notice of this also must be given to the Government. 73. Disbursing Officers. The accounting officers cannot allow credit to disbursing officers for payments not authorized by lav — and in .nil cases of such over payments, illegal payments, , 1828, which declares that no person in arrears to the Government shall be paid his ^compensation until he shall account for and pay into the treasury all sums for which he may be liable, only refers to .persons who are ascertained upon the settlement of their accounts to be in arrears, and where the time for accounting has actually passed, ff there be any amount due them over and above such deficiency, it should not be retained, but should be paid over to them. This act does not refer to officers to whom advances have been made upon regular requisitions and warrants, in rendering their accounts for which advances they have been necessarily and unavoidably delayed. 84. Courts of Reccrd. A Court of Record has been generally held to be one which is expressly so made by the law of the State which creates it, or which has been so adjudged by the tribunals of the State, or which proceeds according to the course of the common law, with a jurisdiction not limited in amount, keeping a regular record of its proceedings, and having the power of fines and imprisonment. 85. Officers on Leave of Absence. Officers on leave of absence must return to their duty, when- ever that may be, without 'expense to the Government. Orders given for their return to duty are not to be so construed as to allow them transportation. 86. Partners Signing a Bond. The signature of partners to a sealed instrument must be 28 made J>y each partner separately, and with a separate seal. as there is no partnership seal, and no partnership signature in such Ci Uowed, Department Cle k in the Government de) or attorney for claims against the Governfi 88. Bonds Filed with the Comptroller. The Comptroller is not authorized to give up a bond or contract either to the obligors or to any one else, except by an order from the head of the department where the contract was made* The official bonds of disbursing officers, or agents of the Government, which are filed with the Comptroller, are not surrendered on the final settlement of their accounts, nor on the execution of new bonds. The Comptroller is not author- ized either to relinquish security or to require new, or additional security. He can only authorize the withdrawal of bonds for the purposes of suit. 89. Lapse of Time. * Although lapse of time furnishes strong presumptive evi- dence against the justice of a claim, it is not an insuperable bar to its allowance and payment where the delay can be reasonably accounted for. 90. Soldiers Detained beyond their Term of Service. When a soldier does not receive his discharge at the end of his term of service, and is retained in the service beyond that time, he is to be paid to the time of his actual discharge. 91. Prisoners. When a soldier is taken prisoner by the enemy, he is enti- tled to his pa}' and allowances during his captivity, and to his travelling allowance from the place of his release to his home. 92. Soldiers Illegally Discharged. If a soldier is illegally discharged, or against his will, he is entitled to be paid up to the time of the discharge of his company, or to the expiration of his term of enlistment, (whichever shall first occur.) 93. Sureties upon Bonds. In case of the death of a surety on a bond, his estate is 29 not thereby released from liability for the .subsequent delimits of the paymaster or quartermaster. 94. Quarters and Fuel. The Army Regulations, allowing commutation for fuel and quarters, restrict it to the time when the officer is actually at iiis post, or when temporarily absent on duty, and do not treat it as an emolument. Officers on leave of absence oY awaiting orders, are not entitled to fuel and quarters. An officer who receives his quarters in kind, should receive his fuel also in kind. s 95. Travel Pay. Travelling expenses can only be allowed when the journey is performed by direction, or approval, of the proper author- ities. The charge for travelling expenses is to be calculated by the shortest mail route, or the route -usually travelled, as the case may be. 96. Ex Post Facto Laws. Laws which modify or alter the jurisdiction or powers of judicial tribunals are not regarded us u e.r post facto'' 1 laws within the scope of the prohibitory clause of the Constitution. This clause has been held to refer only to penal statutes, and not to those affecting civil rights or remedies. (See Galder & Bull, 8 Dallas, 38(5.) Yet, in England the reverse was decided by Lord Kaymond. But a law which operates retroactively so as "to impair the obligation of a contract is essentially invalid and void. Laws which impair the obli- gation of contracts are prohibited by most of our State Con- stitutions, and also as to Slates by the Confederate Constitu- tion. Statutes are held to be' prima facie prospective in their operation ; and retrospective laws being odious in their nature, the presumption should be that they were otherwise intended where a prospective construction is justly admissible. A law annulling conveyances is unconstitutional as impair- ing the obligation of contracts. (See Fletcher & Peclc, 6 Cranch, 87.) • • 97. Contingent Expenses of Courts. The ''contingent expenses" of courts which marshals are authorized to pay, are only those which arise in the holding of courts according to appointment, at the specified time and place. .;£* 31) 98. Powers of Attorney from one Co-Executor. Payments made to a person acting under a powef bf attor- ney from one of several executors arc valid — co-executors beirtg regarded in law as one power, or one entity, and the act of one as the act of all. 99. Payments to a Wrong Person. Tf a wuiTgnt lias been properly issued, and has been paid by mistake to a wrong person, no new requisition need be issued to cover the claim. A requisition having been already issued, and upon that requisition a warrant, which in legal contemplation is yet outstanding, the proper course is to issue a duplicate warrant, reciting the facts as to the first warrant, or to withdraw the first and issue another, to be treated, as if presented the first time for payment. The person who made the pa}'ment to the wrong person is chargeable with such mistake. . 100. Survivorship. Where there is a mere naked power, it does not survive, but a power coupled with an interest, or a trust, does survive. 101. Marshal's Fees, etc. The taxation of the court, and the allowance and certifi- cate of the judge are conclusive upon the accounting officers, when the service, or purpose, is specified in the Act of Con- gress, an (J the siim allowed therefor is not exceeded. LEWIS ORUGER Comptroller. SYNOPSIS BUSIJU OF THE (JOIHPTROLLER'S OFFICE. 1st Branch. Collectors of Customs. Sec. 1st. Corres- pondence, examining and deciding Law questions. 2nd. Weekly Returns of Import and Export Duties. 3RD. Monthly Returns and Estimates of 'Expenses of Collecting the Reve- nue. 4th. Returns and Estimates for Lighthouses. -Vni. Letters of explanation on the above. 2nd Branch, District Judges, District Attorneys, Marshals.