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was, per settlement, dated October 18, 1904, and warrant No. 9989, dated October 25, 1904, paid to him.
From this state of facts it appears that the Second National Bank, of Allentown, Pa., is the bona fide holder of warrant No. 2462, dated July 25, 1904, in favor of Harry A. Weaver, for $26. The amount repaid to the assistant treasurer at Philadelphia was not covered into the Treasury, but is held by the assistant treasurer to replace the amount previously paid by him. The application by the bank is therefore not to be regarded as an application for refundment of money paid into the Treasury, but as a request for payment of the warrant. I do not think the fact that after Mr. Weaver, of Allentown, Pa., was informed that his claim for extra pay for services in Company D, Fourth Pennsylvania Volunteers, was disallowed, and that the settlement was on account of "Henry A. Weaver, private D, 4th Pa. Vols. and A, 28 U. S. Vols.," he presented the warrant to the bank to have it cashed, constitutes fraud. Although this information was sufficient to indicate. to him that some error had been made, it did not clearly show the nature of that error. There was an error in describing the service for which the allowance had been made, and as this description included service in Company D, Fourth Pennsylvania Volunteers, which was the service rendered by him, he might reasonably have thought that an error had been made in the statement that his claim for that service had been disallowed. And not knowing that there was another soldier having the same name as himself, who had served in Company A, Twenty-eighth United States Volunteer Infantry, and who had also made claim for extra pay, he still might have believed that the warrant was issued in payment of his claim. The question of the right of a bona fide holder for value of a negotiable instrument to payment thereof was considered very fully in the case of Murry v. Lardner (2 Wall., 110). In this case the Supreme Court said:
"The general rule of the common law is that, except by a sale in market overt, no one can give a better title to personal property than he has himself. The exemption from this principle of securities, transferable by delivery, was established at an early period. It is founded upon principles of commercial policy, and is now as firmly fixed as the rule to which it is an exception. It was applied by Lord Holt to a bank bill in Anon, ist Salkeld, 126. This is the earliest reported case
upon the subject. He held that the action must fail by reason of the course of trade, which creates a property in the assignee or bearer.""
In subsequent cases cited by the court the same principle was applied to a bill, and after reviewing the cases on this subject the court enunciated the following propositions:
"The possession of such paper carries the title with it to the holder: The possession and title are one and inseparable." "The party who takes it before due for a valuable consideration without knowledge of any defect of title and in good faith holds it by a title valid against all the world.
"Suspicion of defect of title or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man or gross negligence on the part of the taker at the time of the transfer will not defeat his title. That result can be produced only by bad faith on his part.
"The burden of proof lies on the person who assails the right claimed by the party in possession.
'Such is the settled law of this court, and we feel no disposition to depart from it. The rule may, perhaps, be said to resolve itself into a question of honesty or dishonesty, for guilty knowledge and wilful ignorance alike involve the result of bad faith. They are the same in effect. Where there is no fraud there can be no question. The circumstances mentioned, and others of a kindred character, while inconclusive in themselves, are admissible in evidence, and fraud established, whether by direct or circumstantial evidence, is fatal to the title of the holder."
I think there is no doubt that the Second National Bank, of Allentown, Pa., acquired the warrant in good faith and for a valuable consideration, and I am therefore of opinion that it is entitled to payment of the amount thereof.
PAYMENT FOR EXTRA TOURIST-CAR BERTHS OCCUPIED BY TROOPS WHILE TRAVELING. The United States is not liable for the use by troops of a greater number of berths in a tourist car than were called for by the transportation request, unless the action of the officer in charge of the troops in contracting for such additional berths is subsequently approved by the proper administrative officers.
(Decision by Assistant Comptroller Mitchell, December 8, 1904.)
The Pullman Company appealed September 27, 1904, from the action of the Auditor for the War Department in settlement dated March 24, 1904.
The company claimed $10 for the use of two berths in tourist car in excess of number covered by transportation request No. 240, June 17, 1903, Newton, Kans., to San Francisco. The Auditor disallowed the claim as follows:
"The company has been paid for all service covered by the transportation request, and all space actually required by the party. If more berths were occupied than the request called for, either with or without the consent of the company, that is a matter entirely between the company and the officer in charge of the party. The accounting officers are not authorized to allow pay for any service not covered by the request."
It appears that on June 17, 1903, transportation in tourist car was furnished from New York (Weehawken, N. J.) to San Francisco for 1 officer and 26 recruits, per request No. 240, the officer being entitled to one section and the men 3 to a section, making 94 sections in all. Payment for said service has been made by Lieut. Col. W. H. Miller, per his voucher 201 B, July, 1903, F. Y., 1903.
It appears that east of Chicago the car was in charge of a porter, who had written instructions that the detachment was entitled to 9 sections.
The conductor in charge of the car west of Chicago states that:
"Three berths were occupied by 3 men of this company up to about 11.30 p. m. on the night leaving Chicago, and at that time I had them vacate the berths and sleep with others of the company. On the second night, at Newton, Kans., 2 of these men occupied two extra berths and refused to vacate or pay for the use of the the same, and were upheld by the officer in charge, Lieutenant Van Duyne. The car left Chicago at 10 p. m.
A statement signed by the conductor in charge of the car and the officer in charge of the recruits is as follows:
"Leaving Chicago June 19 with car 308, line special, F. W. Van Duyne, first lieutenant of Fourth Infantry, had charge of 26 recruits; my letter of instructions taken from porter (R. W. Wilson) was to the effect that 9 sections were to be given these 26 men and 1 officer. The men refused to comply with requests or to confine themselves to space assigned to them, and Lieutenant Van Duyne requested that two more berths be given these men, and signs this as a request for the Pullman Company to collect from Quartermaster-General for additional revenue due the company, if this detachment was not entitled to the two extra berths. He was told by the agent of
the Pullman Company, at Weehawken, N. J., that all sections of the car (excepting one to be reserved for conductor and porter) were available for his use and use by the detachment. There was no misunderstanding as to the use of these berths until after leaving Chicago."
Lieutenant Van Duyne, per indorsement dated October 28. 1903, states:
"On signing the sleeping-car request at Weehawken I was aware of the fact that the request actually covered but 9! sections, and that the Pullman Company would be reimbursed for that number only. However, in going through the car with Mr. E. Van Duyne, Pullman agent at Weehawken, just prior to my departure, I asked him if there was any objection to using the three vacant sections. He informed me that one section must be reserved for the porter and conductor, one could be used for the rations of the detachment, and that the remaining section could be used by any members of the detachment I desired to place in it. For this reason I had two acting noncommissioned officers assigned to it for the journey between Weehawken and San Francisco.
"During the 17th, 18th, 19th, and 20th of June the section was used, and no dispute arose as to right of occupying it. When in the vicinity of Newton, Kans., Pullman Conductor C. H. Rainier informed me that the detachment were occupying one section more than was authorized, and requested me to have one section vacated. This same conductor had some hours previous required the porter to remove the curtain which separated a small portion of the car from the recruit detachment, telling me there was no authority for having a portion of the car curtained off for my use. I had the curtain replaced and kept there by members of the detachment. I mention this as one of the several incidents which led me to believe that Mr. Rainier was not informed of the rights and privileges of the detachment in this particular case.
"On my refusal to vacate the section referred to, Mr. Rainier told me I could take my choice between giving up the section or having the car cut out and left on a siding. I told him I preferred the latter course. Later, however, he appeared with a simpler plan, and asked me if I would give him a statement to the effect that I had occupied one section contrary to his order. I told him to prepare a letter informing the Quartermaster-General of my actions in the case, and that I would sign it."
The depot quartermaster at New York, per indorsement dated January 11, 1904, states:
"The accommodations furnished by this office for the officer and men were ample and the same as given in all other cases,
and if additional space was occupied it undoubtedly was at the risk of the officer paying for the same."
The Quartermaster-General, in response to request from this Office, states, under date of December 5, 1904, that
"Lieutenant Van Duyne had no proper authority to use the extra berths charged for and his action in so doing is not approved by this Office."
The contract attempted to be made between Lieutenant Van Duyne and the Pullman conductor was without authority and the action of the officer having been disapproved by the proper administrative department, the United States is not liable thereon.
Claims against the United States must be based upon contracts express or implied. When an officer acts without authority, his action can be made the basis of a claim against the United States only when the same has been under an emergency in which his action was necessary for the public service, without the opportunity of obtaining authority, the same being subsequently approved and ratified.
The officer himself and not the United States is liable to the company for the services or accommodations obtained under the conditions above set forth.
The action of the Auditor is therefore affirmed.
EMPLOYMENT OF AN ASSISTANT UNITED STATES ATTORNEY AS A SPECIAL ASSISTANT ATTORNEY TO PERFORM SPECIAL SERVICES OUTSIDE OF HIS DISTRICT.
Where an assistant United States attorney is employed by the AttorneyGeneral as a special assistant attorney to perform outside of his district special services, not connected with his regular duties, at an agreed additional compensation, payment to him of such additional compensation is authorized.
The appropriation for "pay of special assistant attorneys" is exclusively applicable to the compensating of assistant United States attorneys employed by the Attorney-General as special assistant attorneys to perform special services outside of their districts.
(Decision by Comptroller Tracewell, December 9, 1904.)
Mr. A. C. Caine, disbursing clerk, Department of Justice, requests that his settlement, No. 95649, be reopened and the