loss are their own.

Schimmelpennich v. Bayard. 1 p.

to do, in the letter of the 24th June, 1819, "in the persuasion of their solidity, and of the reality of the transaction on which they were issued." If in this they were mistaken, the responsibility and the The 4th and 5th questions have been waived by the parties, and do not properly arise in the case. They are on exceptions taken in the trial of the cause, which could not be brought before the court after verdict, but on a motion for a new trial, which was not made.

The 6th question, whether a judgment can be rendered on the verdict of the jury, has been answered, so far as this court can answer it. We do not understand it as referring to the amount of the verdict, for, on that the circuit court alone can decide. If it is intended to repeat, in another form, the question whether the plaintiffs can maintain their action, as * the holders of bills, ac- [ *292 ] cepted and paid, supra protest, for the honor of the drawers, it is already answered.

The decision of a majority of this court, on the points on which t'e judges of the circuit court were divided, will be certified in conformity with the foregoing opinion.

This cause came on to be heard, on a certificate of division of opinion of the judges of the circuit court of the United States, for the southern district of New York, and on the points on which the said judges were divided in opinion, and was argued by counsel, on consideration whereof, this court is of opinion

1. That the authority to John C. Delprat to draw on the plaintiffs, did not amount to an acceptance of the bills.

2. and 3. That the bills mentioned in the declaration, were drawn by the said Delprat, not under the authority of the plaintiffs, but on his own account; and the plaintiffs were not bound to accept and pay them, unless funds of the drawer came to their hands.

4. and 5. These questions are understood to be waived, and do not appear to arise in the case.

6. The 6th question is decided by the answer to the 2d and 3d, so far as respects the right of the plaintiffs to maintain their action. On the quantum of damages, this court can give no opinion.

All which is ordered to be certified to the court of the United States for the second circuit and district of New York.

4 P. 111; 8 H. 451.

Parker v. United States. 1 P.

DANIEL PARKER, Plaintiff in Error, v. THE UNited States.

1 P. 293.

Under the act of March.16, 1802, (2 Stats. at Large, 132,) the adjutant and inspector general while stationed at the seat of government, was not entitled to additional allowances by way of double rations.

ERROR to the circuit court for the District of Columbia.

Jones, for the plaintiff in error.

Wirt, Attorney-General, for the United States, submitted the case.

All the material facts of the case are stated in the opinion of the court, which was delivered by DUVALL, J.

An action was commenced in the circuit court, by the United States, against the plaintiff in error, to recover the sum of $2,337.60, which he had received from Mr. Leslie, the paymaster, then stationed at the seat of government, on a claim for double rations, due him in

his capacity of adjutant and inspector-general of the army [*294] of the United States, from the * 30th of September, 1818, to

the 31st of May, 1821. On the settlement of the account of the paymaster, this item was disallowed by the second auditor, who considered it as wrongfully paid; and the amount was afterwards directed to be charged to the personal account of General Parker.

The office of adjutant and inspector-general of the army, with the rank, pay, and emoluments of a brigadier-general, was created by the Act of March 3, 1813. The plaintiff in error was appointed to that office; and his commission bears date on the 1st of May, 1816, with the rank of brigadier-general from 22d of November, 1814.

The pay and emoluments of the officers of the army are fixed by the act of 16th of March, 1802, and the act of the 12th of April, 1808.2 By the 5th section of the first-mentioned act, it is provided that the commanding officers of each separate post shall be entitled to such additional number of rations as the President of the United States shall from time to time direct, having respect to the special circumstances of each post. Under this authority, the President has at various times designated military posts and stations, and allowed double rations to the commanding officers; and in the case of General Wilkinson, when stationed at New Orleans, and commanding there in quality of a commanding officer at a separate post, he allowed that officer treble rations. It appears, by the record and documents 12 Stats. at Large, 819.

2 Ib. 481.

Parker v. United States. 1 P.

referred to in this case, that on the 25th of August, 1812, the President ordered that generals commanding separate armies should receive double rations.

In February, 1814, an order was issued by the war department, on the subject of double rations, of which the following is an extract: "It is ordered that general or other officers commanding districts shall, while so doing, receive double rations; which will supersede all other grants of double rations at posts within the district."

On the 6th of March, 1816, a general order was issued in the words following: "Generals commanding divisions; officers commanding military departments; and all officers while in the command of permanent posts and garrisons, separate from the stations of commandants of departments, which subject them to the additional expense of independent commands, are allowed double rations. No more

than one officer can be entitled to double rations at the same station."

The adjutant and inspector-general performed the duties of his office from November, 1814, and charged the compensation as allowed by law until the year 1816, when a difficulty arose on the subject of his fuel and quarters, from the circumstance of their being no disbursing office in the quartermaster's department at the seat of government; and from the regulations of the [295] war department then in force, prohibiting an allowance in money to be made to officers in lieu of these emoluments. The secretary of war then issued the following order: "A commutation of double rations is allowed to the adjutant and inspector-general in lieu of fuel and quarters."

Under this authority he claimed and was allowed double rations from November, 1814, refunding to the government the allowance he had received for fuel and quarters from the time of his acceptance until the date of the above order. He continued to receive double rations, making no charge for fuel and quarters, until an order was issued by the secretary of war, on the 10th of August, 1818, to the following effect: "The reason for the allowance to the chief of the engineers, and to the adjutant and inspector-general, in lieu of fuel and quarters, no longer existing, since the establishment of the quartermaster's department, at the termination of the present quarter such allowance will cease, and the quartermaster-general will, on requisition, furnish them with fuel and quarters, agreeably to their respective ranks." The commutation of double rations ceased accordingly; and the adjutant and inspector-general continued to charge and receive single rations only, from the 1st of October, 1818. to the 31st of May, 1821, when the office was abolished.

Parker v. United States. 1 P.

The defendant in the court below, now plaintiff in error, in support of his claim, produced a certificate from Richard Cutts, second comptroller of the treasury, "that the senior officer of the engineer department, stationed at Washington, has charged and been allowed double rations since the 1st of January, 1818. The senior officers of the quartermaster's subsistence, and ordnance departments have charged and been allowed double rations, since the 27th of July, 1821; and Major-General Brown has charged and been allowed double rations since the 1st of June, 1821, when he was stationed in this city." And also the following regulations: The regulation and general order of the 27th of July, 1821, issued by the war department, allowing to the quartermaster-general, commissary-general of subsistence, the colonel of engineers, and the chief of the ordnance department, (while stationed at the seat of government,) double rations from the date of the said order.

The regulations or general order, duly issued from the war-department, dated the 31st of May, 1821, addressed to the defendant, as adjutant and inspector-general, directing him, among other things, to hand over the records and files of his office to Major-General Brown, on the next day, being the 1st of June, 1821; the said majorgeneral having, from the time he had assumed command, and had relieved the said adjutant and inspector-general, at the seat [296] of government, pursuant to the last-mentioned order, been

allowed and paid double rations, as certified by the second comptroller; which regulation or general order is in the following words: "The adjutant-general, under the law of the 2d of March last,' being attached to the major-general commanding the army, and now absent, you will to-morrow pass over the records and files of your office to Major-General Brown, and will assume the duties of paymaster-general. Major-General Brown has been advised of this order; and Colonel Towson will be instructed to hand over the papers and records of the pay department to you." That the brigadiers-general of the army of the United States have all been regularly allowed double rations since the said general order and regulation of the 6th of March, 1816. That the defendant continued at the head of the department of adjutant and inspector-general, and stationed at the seat of government, from the time of his appointment and commission as such until the 31st of May, 1821, and until he was relieved by Major-General Brown as before mentioned.

The defendant then proved, by Thomas S. Jessup, quartermastergeneral, that in his opinion, and according to the general usage of the army, the department of adjutant and inspector-general was a

13 Stats. at Large, 615.

Parker v. United States. 1 P.

military department; and that the defendant, whilst exercising that office, was commandant of a military department; and, as such, was subject to the additional expense of an independent command.

The declaration in this cause is founded on a transcript from the treasury, certified in the usual form, and contained a count for money had and received, and other counts not necessary to be mentioned; issue was joined on the plea of non assumpsit; and by agreement of counsel, a verdict for the United States was taken for the sum claimed, subject to the opinion of the court upon the laws of the United States relative to the pay and emoluments of the officers of the army and the regulations and orders of the executive department, issued in pursuance of those laws. The court, on consideration, gave judgment in favor of the United States; and the cause is now before this court, by writ of error, for their decision.

The claim of the plaintiff in error to double rations, as charged, rests altogether upon a correct construction of the 5th section of the Act of the 16th of March, 1802, and of the regulations and orders of the executive department, issued in pursuance of that section. The President of the United States has a discretionary power to allow such additional number of rations to officers commanding at separate posts, as he may think just; having respect to the special circumstances of each post. The law granting this authority is not imperative, and in the exercise of his discretion the President may allow or *refuse to allow additional rations, as in his [*297 ] opinion he may deem just.

The reason of the authority to grant the allowance is obvious. By an independent command, at a separate post, the officer is subject to additional expense and an increase of duty. An officer may be said to command at a separate post, when he is out of the reach of the orders of the commander-in-chief, or of a superior officer in command in the neighborhood. He must then issue the necessary orders to the troops under his command, it being impracticable to receive them from a superior officer. His authority is the source from which they must flow.

There can be no controversy about additional rations, if the President makes the allowance. He may issue the order himself, or it may be done by the secretary of war, with his approbation. The secretary of war, as the legitimate organ of the President, under a general authority from him, may exercise the power and make the allowance to officers having a separate command. The language of the law is plain and unambiguous. No officer is entitled to the additional allowance unless he be a commandant at a separate post, and