ASSISTANT SURGEON.

525. It is a peculiarity in the status of assistant surgeons (under Sec. 1168, Rev. Sts.) that these are the only officers in our army (except lieutenants of Engineers and Ordnance-see Sec. 1207, R. S.) in whose case promotion to a higher grade results by operation of law from mere duration of service and independently of any action by the appointing power. XLIII, 208, February, 1880.

526. Held that a person appointed under sec. 17 of the act of July 28, 1866, fixing the military peace establishment an assistant surgeon with the rank of captain-to which rank he was entitled by length of service according to the act—was entitled to rank as a captain in the medical department and in the army from the date of his appointment, and as such to have precedence and priority in service, and on the Army Register, over all assistant surgeons appointed captain after himself, though they may have been appointed assistant surgeons with the rank of first lieutenants before he was so appointed with the rank of captain; and, further, that he was entitled on courts-martial, boards, &c., to rank any captain of the army whose appointment as such was of more recent date than his own.' XXXIX, 491, 508, March, 1878.

B.

BAIL.

527. No court martial, military commander, or other military authority is empowered to accept bail for the appearance of an arrested party or to release a prisoner on bail. Bail is wholly unknown to the military law and practice; nor can a court of the United States grant bail in a military case. IX, 260, June, 1864; XXI, 258, March, 1866.

BOARD OF INVESTIGATION.

528. A board of officers convened to investigate-obtain, or hear and examine, evidence and report, can, in the absence of specific statutory authority, exercise none of the peculiar legal functions either of a court-martial or a court of inquiry. II, 340, May, 1863; XXI,

See, to a similar general effect, opinions of the Solicitor General of June 6 and July 2, 1878 (16 Opins. At. Gen., 56, 605).

"The act of July, 1864, c. 253, s. 7—which authorized a judge or commissioner of a U. S. district court to admit to bail a contractor or inspector, amenable to trial by court-martial under the then existing law, and arrested with a view to trial therebyis no longer operative.

335, April, 1866; XXVI, 492, March, 1868; XXXII, 3, Ma 1y,871; XLI, 263, June, 1878. Its members cannot be sworn; it cannot swear witnesses;1 civilian witnesses cannot be compelled to appear before it; nor are the witnesses who appear and testify legally entitled to any compensation for attendance or travel. XI, 672, April, 1865; XXI, 335, supra; XXVI, 492, supra. Such a board cannot try, nor can it sentence. XI, 672, supra; XXXII, 3, supra. There is properly no "accused" party required or entitled to appear before it as before a court-martial or court of inquiry. II, 340, supra. It is not restricted by law as to the period of its sittings, nor is it affected by any statute of limitations. XXVI, 493, March, 1868. Its members (though in this, indeed, it does not differ from a court of inquiry) may present two or more reports where they cannot concur in one. XLI, 207, April, 1878.

529. As a court of inquiry cannot be ordered in a case of a civilian, a body of officers convened to inquire into and report upon the facts of the case of an officer who has been legally dismissed from the service is a mere board of investigation, and can exercise none of the special powers of a court martial or court of inquiry. XLI, 263, June, 1878.

530. A clerk of the War Department applied for a board to investigate charges against him made by another clerk. Adrised that such a board would not be a body recognized by law, and would be without judicial power and incapable of being itself sworn or of administering oaths to witnesses; that it would not be desirable to resort to such an extra-judicial tribunal where the ordinary courts could more effectually inquire and afford redress. 32, 252, May, 1889.

the

BOARD OF SURVEY.

531. A board of survey is not a court, and can not legally exercise powers expressly vested by statute in courts martial or courts of inquiry. XXXIV, 306, June, 1873. It is no part of the province of a board of survey to convict of crime. Where such a board, in fixing upon an officer a pecuniary responsibility for the loss of certain subsistence stores, expressed incidentally the opinion that the same had been stolen by a certain soldier, held that this opinion could not operate as a finding of theft, or constitute authority for the stopping against the pay of the soldier of the value of the stores. XLII, 605, April,

1880.

532. There is no statute or regulation authorizing the swearing of a board of survey or its members, nor indeed is it necessary or suitable

'See § 183, Rev. Sts., as amended March 2, 1901, note 1, p. 502, post.

that such a body, not being a court, should be specially sworn. A board of survey, moreover, has no legal capacity to swear persons attending before it as witnesses; nor is it within the province of an executive order to authorize such a board to administer an oath either to itself or to a witness.1 V, 590, January, 1864; XXXIII, 548, 561, December, 1872; XXXIV, 305, June, 1873.

533. A board of survey, though it may not swear witnesses, may receive and file with its report affidavits of persons cognizant of facts under investigation. V, 590, January, 1864.

BOND.

Of Disbursing Officer, and Generally.

534. The bond should of course be executed by all the parties— obligor and sureties. XXXVII, 573, May, 1876. It has been held by the U. S. Supreme Court3 that an instrument in the form of an official bond, though without seals, may be good as a contract at common law. To avoid, however, any questions that might arise from the absence of a seal, advised that formal seals "of wax or other adhesive substance," be in all cases required to be affixed by the subscribing parties. XXVI, 471, February, 1868; XXXIV, 141, 142, February, 1873; XXXVII, 573, May, 1876; XXXVIII, 101, June 1876.

535. The obligation of each surety must be for the whole amount of the penalty; the regulation requiring that the sureties shall be jointly and severally bound for the whole amount of the bond. So, where the penalty in a quartermaster's joint and several official bond was $10,000, and the sureties, in executing the same, assumed to be bound only in the sum of $5,000 each, the words "for five thousand dollars" being written under each signature-held that the instrument was contradictory, did not conform to the regulations, and should not be accepted. XXVI, 327, December, 1867. And similarly held in a

1See opinion of Judge Advocate General published in full in G. O. 68, War Dept., 1873; also par. 712, A. R. (795 of 1901).

As to the procedure of Boards of Survey, action on their reports, &c., see G. O. 179 of 1898.

2 Here may be noted the opinion of the Attorney General (16 Opins., 38) that the giving of bond is not necessary to entitle persons appointed to office in the army requiring the disbursement of money, to begin to receive pay, but that they are entitled, like other officers, to be paid upon the acceptance of their appointments, according to par. 1346, Ariny Regulations (1863), whether they have at that time furnished their bonds or not.

3 United States v. Linn, 15 Peters, 290. Where an official bond offered by the principal without seals was returned to him to have the seals put on, and was brought back by him with the seals attached, the consent of the sureties thereto will be presumed in action on the bond, unless the contrary appears. Moses v. U. S., 166 U.S., 571.

*See the requirement to this effect subsequently published in Circular, Hdqrs. of Army, of June 11, 1869; and see A. R., 571-578 (650–657 of 1901).

case of a bond with a penalty of $40,000, where the sureties wrote opposite their signatures, respectively, "for $35,000," "for $5,000." Sureties cannot qualify their obligation by thus limiting their personal liabilities. XXXIV, 183, March, 1873; Cards 1974, January, 1896;

2895, January, 1897.

536. There is no statute or regulation prohibiting an officer of the army from acting as a surety on the official bond of another officer. Such a relation, however, is not one to be favored. XXXIV, 164, March, 1873; XXXVIII, 659, July, 1877.

537. The regulations contemplate plural sureties on bonds of disbursing officers. A justification of a surety, however, is no part of the bond (XXVI, 327, December, 1867; XXXVIII, 418, January 1877), and as the object of the justification is to satisfy the Secretary of War that the sureties are good for double the penalty, the Secretary, where amply satisfied that one certain person offered or executing as surety is pecuniarily sufficient for such amount, would be authorized to accept him (on his properly justifying) as sole surety, and to waive any further surety or sureties with the instrument. A subordinate of course can have no such authority. In view, however, of the terms of the regulation and of the practice under it, this authority would of course most rarely be exercised in cases of disbursing officers' bonds. XXXVIII, 418, supra; XLI, 169, April, 1868.

538. Par. 572, A. R. (651 of 1901), prescribes that non-corporate sureties to bonds given by disbursing officers will be bound jointly and severally for the whole amount expressed therein and must satisfy the Secretary of War that they are worth jointly double such amount, each surety making affidavit that he is worth that sum over and above his debts and liabilities. But where the aggregate of the amounts in which the sureties justify equals or exceeds double the amount of the bond, the objection that one or more of them individually justified in less than that sum may be and is in practice waived by the War Department. Cards 373, September, 1894, December, 1898; 875, January, 1895, January, 1899; 1502, July, 1895; 1763, October, 1895; 2129, March, 1896; 2212, April, 1896; 3227, May, 1897; 3261, June, 1897, January, 1898; 3337, July, 1897; 4554, July, 1898.

539. The certificate as to sufficiency of non-corporate sureties should state, as required by army regulations that they are known to him-the official making the certificate—and that to the best of his knowledge and belief each is pecuniarily worth over and above all his debts and liabilities the sum stated in his affidavit of justification. Card 1670, August, 1893. The certificate is not required of a corporate surety. Card 284, September, 1898.

See Murfree on Official Bonds, § 251.

540. Of two or more sureties to an official bond, each, according to the regulation, should justify separately; a justification in joint form is irregular and improper. XXXIII, 273, August, 1872; XXXVIII, 101, June, 1876. An affidavit of justification should properly be expressed in the first person, not in the third. XXXVII, 567, May, 1876. The sureties should personally sign each his own separate affidavit: an affidavit signed only by the notary or other official administering the oath is irregular. XXXIV, 147, 271, 337, February and June, 1873. Where the affidavit has been taken and executed, it is not regular for the obligor, even with the assent of the surety, to modify it in a material particular-as, for example, in the amount stated; where there is error, the proper course is for the surety to justify anew. XXXIV, 147, supra.

541. Section 1191, Rev. Sts., requires bonds only of certain disbursing officers specifically named. In the absence of any express provision of law, prescribing that bonds shall be furnished by other disbursing officers, the President, in his discretion, and for the better security of the public funds, may, through the head of the proper Department, require such bonds to be furnished.' 51, 446, January, 1892.

542. A bond given by a disbursing officer of the army (or any bond required by the War Department) wherein the Secretary of War is made the obligee, is in incorrect form. The obligee should be-The United States of America. 32, 131, May, 1889.

543. A bond should of course be dated, but the omission of the date will not affect the validity of the instrument, as the true date of execution can be proved aliunde, in the event of a suit on the bond. 63, 387, February, 1894; cards 3511, September, 1897; 2687, November, 1897; 4279, June, 1898.

544. The seal of both obligor and sureties must be a formal one, of wax, wafer, or other adhesive substance. A mere scroll made with the pen is not accepted by the War Department. 54, 305, July, 1892; 63, 322, January, 1894; 64, 276, March, 1894; 65, 190, 406, 414, June and September, 1894; Cards 771 and 893, January, 1895; 2038, February, 1896; 2260, May, 1896. Where a corporation is the obligor, its corporate seal should be impressed on the bond if it has one. 65, 190,

i Bonds may be required by the Government from officers appointed to places of trust, though there is no statutory authority to take such bonds, and they will be valid as common-law obligations. In a bond with sureties, given by an officer of the Government, it is sufficient to make the bond valid as a common-law obligation that it is voluntarily given and that the office and the duties assigned to the officer and covered by the bond are duly authorized by law. U. S. v. Tingey, 5 Pet., 115; U. S. v. Bradley, 10 id., 343, 360; U. S. v. Rogers, 28 Fed. Rep., 607; 6 Opins. At. Gen., 24.

2 Murfree on Official Bonds, § 6.