discharged, and it remains for the representative to dispose of the property according to the law applicable to the case. XLIII, 266, March, 1880.

ONE HUNDRED AND TWENTY-EIGHTH ARTICLE.

The foregoing articles shall be read and published, once in every six months, to every garrison, regiment, troop, or company in the service of the United States, and shall be duly observed and obeyed by all officers and soldiers in said service.

ABSENCE WITHOUT LEAVE.

374. An unauthorized absence from the quarters only, as from 11 p. m. inspection, held not properly chargeable under the 32d Article. This article contemplates an absence from the soldier's "troop, battery, company or detachment"—an absence from the post or command. 47, 133, May, 1891; 49, 100, 171, September, 1891.

375. The statutory authority for the army regulation requiring that deserters restored to duty without trial shall make good time lost by desertion, is found in the 48th Article of War; but there is no such article or other statute with reference to absence without leave. Whether therefore a soldier can by a regulation alone be required to make good time lost by absence without leave is doubtful. 65, 338, June, 1894. The soldier by virtue of his contract of enlistment fails to earn and therefore is not entitled to pay and allowances accruing during the period of his unauthorized absence, but it is considered that in the present state of the law his retention in the service to make up time so lost cannot legally be authorized.' Cards 1485, June, 1895; 1494, July, 1895; 3744, December, 1897.

376. Violations of the 33d Article of War should not be charged as absence without leave under the 32d Article. Card 2838, December, 1896.

377. Where an officer or soldier on his return from an unauthorized absence is, in consequence of his report of the facts and circumstances of such absence, not proceeded against by his proper commander for the military offence involved, but is by the latter placed upon full duty, such action, under the general custom of the service, may be pleaded as a good defence, if the officer or soldier be subsequently brought to trial for the unauthorized absence. II, 376, 391, May, 1863. 378. An enlisted man forfeits his pay and allowances during the

This view is not in accordance with the Army Regulations and practice. See A. R., 133 of 1895 (144 of 1901).

2 An absence without leave by an officer is laid under the 62d Article of War.

period of an absence without leave, as provided in army regulations. During such absence he renders no service and therefore earns neither pay nor allowances. The forfeiture is thus by operation of law and accrues independently of the result of a trial for the military offence involved in the unauthorized absence. One of the purposes of the muster and pay rolls is to show what service the soldier renders, and if they show that he has rendered none during a particular period by reason of an absence without leave, he is not entitled to pay and allowances during such period.' 36, 303, November, 1889; 57, 240, January, 1893; Card 1494, June, 1895. For an absence without leave of less than a day the soldier may of course be tried by court martial and sentenced to suffer a forfeiture, but such absence should not be noted on the muster and pay rolls. 47, 399, June, 1891.

ACCOMPLICE.

2

379. In general, where an accomplice offers and is admitted to testify upon the part of the government against an accused person, he is called to the stand under an implied promise that no proceedings will be taken against himself, and that the question of his pardon will be favorably considered, provided he makes a full disclosure of the facts within his knowledge; and this whether or not the accused be convicted by means of his evidence. So, where a party, who had thus been admitted to testify as witness, and had in good faith made a full and frank statement of the circumstances of the offence (of which, however, the accused was acquitted by the court), was himself subsequently brought to trial for the same act, and convicted, and sentenced for his part in the same,―recommended that his sentence be remitted by the President. XI, 590, and XIV, 259, March, 1865.

ACCOUNTABILITY OF OFFICER.

380. There is neither law nor justice in holding an officer of the army pecuniarily accountable to the United States where the U. S. has lost nothing by his act; or in holding him so accountable where, though there has been such loss, the same was not occasioned by his act. He may indeed be amenable to court-martial for some neglect of duty

1U. S. Landers, 92 U. S., 77, 79.

"See King . Rudd, Cowper, 331; United States v. Lee, 4 McLean, 103; Whiskey Cases, 9 Otto, 594; People v. Whipple, 9 Cowen, 707; 1 Chitty Cr. L., 768-9; 1 Bishop Cr. Proc., § 1075-6, and notes; also Report (No. 352) of Committee on Judiciary of H. of Reps., 44th Cong., 1st Sess., March 31, 1876.

involved in the act and properly brought to trial therefor, but this is a wholly distinct liability. 46, 340, April, 1891.

381. A recruiting officer's clerk (a corporal), having access to blank transportation requests, filled out several in favor of a railroad company, forged thereto the name of the officer and disposed of the same. The forged requests were paid by a disbursing officer. Held, that the latter having paid out money of the United States on forged vouchers was alone legally accountable for the loss. If the officer who permitted access to the blank requests thereby committed a military offence, his amenability for such offence could be enforced only by means of a trial, conviction and punishment by court-martial. Whatever may be the legal effect of par. 35, Circular 7, A. G. O., 1892, the loss in question occurred prior to the promulgation of the circular. 56, 208, October, 1892.

382. Where an officer, having had entrusted to him by another officer a medal of honor, intended for and to be delivered to an enlisted man, gave such care to its safe-keeping as he gave to his own property, locking it up in his trunk for the purpose of transportation-held that he was not legally accountable for the loss of the medal in transitu. He was simply a gratuitous bailee of whom is required only the lowest degree of care and who is not liable for a loss which is not the result of gross negligencé. 44, 382, December, 1890.

383. A person who, as an officer of the army, has been subjected under Sec. 1304, Rev. Sts., to a charge, against his pay, of the money value of military stores deficient or damaged for which he has been held accountable, cannot, after he has ceased to be such officer and has left the army, be relieved from such liability by the Secretary of War under that Section. For such relief he must have recourse to Congress. 65, 137, May, 1894.

"ACTING ASSISTANT" OR "CONTRACT" SURGEON.

384. A contract" or "acting assistant" surgeon is not a military officer and has no military rank or status. He is amenable indeed to the military jurisdiction when employed with the army in the field in time of war (see SIXTY-THIRD ARTICLE); but he is in fact no part of the military establishment; is simply a civilian employed by the United States, under a special contract for his personal services as a medical attendant to the troops. When not serving with troops before the enemy he has no other relation to the military organization or the government than that established by the terms of his contract, made

in accordance with the army regulations. IX, 678, October, 1864; XXVI, 18, September, 1867; XXVIII, 239, November, 1868; XXXIV, 207, April, 1873; LII, 304, June, 1887. He is not subject to military orders in general, like an officer or soldier, but only to such orders or directions as properly pertain to the performance of his particular duties. XXVII, 242, September, 1868. He is of course not eligible for detail as a member of a military court. XXII, 542, December, 1866; XXX, 109, February, 1870. As a civilian, however, he is entitled to the per diem allowance, &c., when duly attending a court martial as a witness. XXIV, 186, January, 1867.

385. Acting assistant or contract surgeons are neither privates, non-commissioned officers nor officers. They were during the war of the rebellion and still are necessarily assimilated as to their duties, pay and status to assistant surgeons of the army. When serving with the forces in the field they are subject to military discipline and to the jurisdiction of courts martial under the provisions of the 63d Article of War. They were creatures solely of army regulations and orders, which are executive mandates wholly powerless to constitute them officers of the army. These regulations and orders could and did authorize commanders to "employ" civil or "private" physicians to render professional services in connection with the medical department of the army, but could not and did not commission or make them regular or volunteer officers. 52, 404, March, 1892; 53, 167, April, 1892; 65, 226, June, 1894; Card 1128, March, 1895.

386. As a contract surgeon was not an officer of the army, an enlisted man could legally be employed to act as one. So held that the employment by the military authorities in 1862 of a "first class musician" of the band of a volunteer regiment (an enlisted man) to act as a contract surgeon, was not illegal. 65, 250, June, 1894.

387. A contract surgeon, not being, in the legal or statutory sense, an officer of the army, held not entitled to the benefit of the act of March 3, 1885, c. 335, to provide for the settlement of claims of officers and enlisted men of the army for the loss of private property." XLIX, 246, July, 1885.

388. Held that a civilian physician, employed (between 1866 and 1868) under contract, by the "Bureau of Refugees, Freedmen and Abandoned Lands", was not a contract surgeon within the application of Sec. 4693, Rev. Sts., relating to pensions, inasmuch as he did not render service with a "military force in the field", or even in attend

1 See U. S. v. Saunders, 120 U. S., 126, to the effect that one person may legally hold two distinct offices, places, or employments, at the same time, under the United States.

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ing members of the military establishment; such bureau being no part of such establishment.' 63, 97, December, 1893.

389. A contract surgeon was appointed under the provisions of the act of Congress approved May 12, 1898, and the contract provided, inter alia, that "when on duty at a post or station where there are no public quarters, he shall receive the commutation for quarters allowed by law to assistant surgeons of the rank of first lieutenant." Held that commutation of quarters was "compensation" within the meaning of the said act of May 12, 1898, and could not therefore be paid in addition to the one hundred and fifty dollars per month authorized by the act. Neither the terms of the contract nor the army regulations (par. 994) could authorize what the statute law prohibited. Card 5142, October, 1898.

390. The contracts entered into with acting assistant surgeons appointed under the act of Congress approved May 12, 1898, after specifying the money compensation contain the following provision: “All of which shall be his full compensation and in lieu of all allowances and emoluments." Held, that this provision did not deprive an acting assistant surgeon of the privilege of buying fuel from the quartermaster's department as provided in par. 999 of the Army Regulations, this privilege not being an allowance or emolument. Card 4988, September, 1898.

391. A contract surgeon can not legally be compelled to remain in the service against his consent after the expiration of the term of his contract. Card 8618, July, 1900.

ADJOURNMENT.

392. The adjournment from day to day of a military court is not required, by law or regulation, to be authenticated by the signatures of the president and judge-advocate. VIII, 507, June, 1864.

393. While the practice of noting the adjournment of the court at the end of the record of a trial is a usual and proper one, and is often of

No specific appropriation for the pay, &c., of "contract surgeons" was made between 1891 and 1898. The act of February 12, 1895, provided however for the employment of "civil physicians" by the surgeon general. But the act of May 12, 1898, provides that in emergencies the Surgeon General of the Army, with the approval of the Secretary of War, may appoint as many contract surgeons as may be necessary at a compensation not to exceed one hundred and fifty dollars per month. From 1888 to 1891 appropriations for mileage to contract surgeons was made in the annual appropriation acts, and again since 1898.

That contract surgeons are not officers of the army, see 26, Ct. Cls., 302, 306; Digest Second Comp. Dec., vol. 3, secs. 929, 932; 4 Comp. Dec. 629, 631.

But General Order 151, A. G. O., 1898, amending A. R., 85 (99 of 1901), relating to the burial expenses of officers of the Regular or Volunteer Army who are killed or who die in the service, was construed by the War Department, December 14, 1898, to include contract surgeons. See also circulars 41 and 55, A. G. O., 1899.