962. A party entered into a contract with the United States to do a certain amount of dredging between April 1st and Aug. 1st, 1895. The contract contained the following provision: "Should the time for the completion of the contract be extended, all expenses for inspection and superintendence during the period of the extension shall be deducted from payments due or to become due the contractor." He did not begin work at the time agreed upon, but on his own application and the recommendation of the engineer officer in charge was given from Aug. 14, 1895, to Jan. 1, 1896, in which to do it. He worked from the 17th of Aug. through Sept., Oct., and Nov. On the question whether the amount paid by the Government for "superintendence and inspection" during the months last named should be deducted from payments due under the contract it was held that the deduction could not legally be made. There had not been an "extension" within the meaning of the contract. The work was to be completed during a specified period of four months, and during that length of time the Government had agreed to pay the expenses of superintendence and inspection. The later agreement changed the time at which the specified period should begin, but did not materially lengthen it. The extension contemplated by the contract was any period of time in addition to the four months, which the contractor might require to complete the work. Card 2400, July, 1896.

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963. By act of Congress approved June 6, 1896, an appropriation was made to enable the Board of Ordnance and Fortification to procure and test one eight-inch calibre high-power gun cast in one piece, on the plan of R. J. Gatling," and the Secretary of War was "authorized and directed to contract with said Gatling for said gun, without advertisement, which gun shall be constructed according to the plans and specifications prepared by said Gatling and under his supervision, and to be subject to the same test now applied to the built up gun of the same calibre * of which sum eighty-five per centum shall be

*

* *

* *

paid in partial payments as the work progresses in accordance with the contract to be entered into and the remainder upon the completion and test of said gun The gun was constructed in accordance with this act and the contract thereunder, and while being subjected to the endurance test of firing 300 rounds, it was destroyed as the result of the firing at the fifteenth round. The act did not contemplate that the final payment of 15 per cent should be made only after the gun had undergone the required test. The words "upon the completion and test of said gun" simply fixed a period for the final payment whether it underwent the test or was destroyed while undergoing it. In one sense of the word the gun had been tested, when in being subjected to the prescribed test, it was destroyed. As the act

66

made the appropriation to procure and test" a new type of gun; as it authorized 85 per centum to be paid as the work progressed without any security for the return of the money, should the gun fail to stand the test; as it appeared from the whole act that the gun was to be constructed as an experiment; and as there was nothing in the act providing for a warranty on the part of the contractor-held, that the word "test" should be construed in the sense above stated, thus entitling the contractor to the payment of the fifteen per centum withheld.' Card 5700, January, 1899.

964. Certain contracts for forage provided that the oats and hay furnished should "be of the best merchantable quality of the highest recognized grade of the locality." Held that the language quoted simply furnished a standard by which the receiving officer was to judge the forage offered under the contract; that the term "locality" had reference to the towns and country in the vicinity of the post where the contractor could reasonably be expected to purchase the forage. State lines would have nothing to do with the matter, and no particular number of miles could be given as the distance to which the locality would extend. It has reference to the sources from which the forage could reasonably be obtained, that is, where the purchasing officer, the local quartermaster, would probably, in the exercise of good judgment, purchase in open market. Cards 1993, January, 1896; 2673, October, 1896.

965. Congress having imposed upon certain designated officials the duty of representing the United States in the making of the contract for the monument to Lafayette, held that the authority was personal and could not be delegated, and that all the officials named, or at least a majority of them, must sign the contract. LII, 363, July, 1887.

966. The implied authority of a partner to execute contracts for the firm of which he is a member does not extend to contracts under seal. Where a partner has given express authority to the other partners to execute contracts under seal, evidence of such authority should be submitted with the sealed instrument. Cards 2483, January, 1897; 5031, 5066, September, 1898; 6902, August, 1899.

967. Affidavits required to be taken in the execution of contracts pertaining to military administration may be taken before the military officers named in the act of Congress approved July 27, 1892. This act, having been passed subsequent to the enactment of Sec. 3745 Rev. Sts., modifies the latter to the extent stated. Cards 3671, November, 1897; 3746, December, 1897; 3768, January, 1898.

968. Money collected upon a contractor's bond as damages suffered

'Concurred in by the Attorney General under date of May 9, 1899.

by the United States in consequence of his failure to complete his contract must, under the provisions of Sec. 3617, Rev. Sts., be turned into the Treasury, and cannot therefore be applied to the work to which the contract pertained until it is so appropriated by an act of Congress. Card 2527, August, 1896.

COPYRIGHT.

969. The work entitled the "Infantry Drill Regulations," being in the hands of the Public Printer for printing and publication for the War Department, that official was authorized by the Secretary of War to sell electrotype plates of the same. A retired officer of the army purchased a set of such plates, and thereupon proceeded to publish the same, copyrighting the publication in his own name (prefacing it with his own portrait). Held that such act of attempted copyrighting was an unauthorized assumption and wholly nugatory in law. It is only the author or proprietor of a literary work who can legally copyright it, and he has the exclusive right to do so. Nor did the fact that the publication by the purchaser was of a so-called "Abridgement”—substantially the original work somewhat reduced-constitute him an author or entitle him to copyright. And advised that the "copyright," being without legal effect and void, could not affect the right of the United States to publish the complete work. 50, 350, 373, December, 1891.

2

970. Where an official of the War Department was allowed to compile and publish facts derived from records, the property of the United States, preserved in that Department for official and public use and reference, held that he could not legally copyright in his own name such compilation. 43, 294, October, 1890.

971. An officer of the army prepared, in 1883, under orders from competent authority, a course of instruction in rifle and carbine firing which was submitted to a board of officers and after slight revision was approved by the Secretary of War for publication to and use by the army. The officer who originally prepared the instructions copyrighted the publication. Several years later other officers in their official capacity revised these instructions or regulations, which revision was approved and adopted by the Secretary of War. On the question whether the revised regulations could be published by the Gov

1See Sec. 9, Art. I, of the Constitution.

2 Drone on Copyright, 324; Sec. 4952, Rev. Sts.; and sec. 1, c. 565, act of March 3, 1891.

3 Gray . Russell, 1 Story, 11; Drone on Copyright, 158.

'See now sec. 52 of the public printing and binding act, Jan. 12, 1895 (28 Stats.,

ernment without an infringement of the existing copyright, it was held that the copy right was not a valid one for the reason that the officer who originally prepared the regulations did so in his official capacity, in the performance of his duties as an officer of the United States Army and under the salary paid him by the Government; that the regulations as originally prepared, considered, revised and adopted became the official public regulations for rifle and carbine firing in the army, and that therefore they could, as again revised by other officers in their official capacity, be printed by the Government for distribution to the army, without infringement of the copyright referred to.' Card 3433, August, 1897.

COUNSEL IN CIVIL PROCEEDINGS.

972. Prior to the passage of the act of June 22, 1870, c. 150, "to establish the Department of Justice"-(see the provisions of secs. 14, 16 and 17 of the same, as now incorporated in Secs. 189, 361, 363, &c., Rev. Sts.), the head of an executive department was held to be authorized, under the general provision on the subject of the act of Feb. 26, 1853, to retain such counsel and avail himself of such professional advice as he might deem expedient, and upon such terms as might be agreed upon as reasonable and proper. Under this provision-in many cases arising during the civil war and subsequently-counsel were employed directly by the Secretary of War, or authorized by him to be employed, to defend officers, soldiers, and in some cases civilians serving with the army, in suits and prosecutions instituted against them, both in State and United States courts, for arrests made and acts done in the performance of duty under orders. In such cases, where the party was shown to have acted within the scope of his authority, or in the honest discharge of his duty under the orders of a proper superior (and, in cases of arrest, upon probable cause and without undue violence), it was usually recommended by the Judge-Advocate General that his defence be assumed by the United States, through the U. S. District Attorney, or some other counsel retained by the Secretary of War or authorized to be employed by himself, with the further suggestion that the counsel be instructed to remove the case, when commenced in a State court, to a court of the United States, if practicable under the existing statute law. Where the party was shown to have exceeded his authority, or to have been actuated by personal hostility, or to have disregarded the directions of par. 1461 of the Army Regulations of 1861 and not reported the case with sufficient promptitude,

1 Wheaton v. Peters, 8 Peters (U. S.), 591; Amer. & Eng. Ency. of Law, vol. 4, pp. 154, 158 (first edition).

his application for counsel was commonly recommended to be denied. I, 348, September, 1862; II, 16, January, 1863; III, 105, July, 1863; VII, 45, January, 1864; VIII, 51, 108, 130, March, 1864; X, 576, XI, 201, December, 1864; XIII, 509, March, 1865; XVI, 565, XVIII, 290, October, 1865; XXI, 197, January, 1866; XXIII, 121, July, 1866; XXIV, 135, January, 1867; XXVI, 248, December, 1867; 521, 536, April, 1868; XXIX, 458, November, 1869; XXX, 83, February, 1870; XXXIV, 65, January, 1873.

973. But, by the act of 1870, above indicated, the whole matter of the employment of counsel in cases of a public nature, and the settlement of their compensation, has been taken from the chiefs of the other executive departments and transferred to the Attorney General. Sec. 189, Rev. Sts. (derived from sec. 17 of said act), provides generally that "No head of a department shall employ attorneys or counsel at the expense of the United States; but when in need of counsel or advice shall call upon the Department of Justice, the officers of which shall attend to the same." The subject is regulated in detail by Secs. 356 to 367, Rev. Sts.; and when an officer or soldier gives notice, as required by par. 1059, A. R. (968 of 1895; 1072 of 1901), of a suit or prosecution commenced against him for an act done in the due performance of a military duty and applies to be defended at the expense of the United States, the Secretary of War, if he deems the case to be one in which such action will be just and expedient, will refer the papers to the Attorney General for the proper action. XXXVIII, 99, June, 1876; 62, 32, October, 1893.

974. Where an attorney submitted to the War Department a claim for services rendered an enlisted man in a habeas corpus proceeding, no notice of such employment having been previously given, it was held that the employment and payment of the attorney were prohibited by Secs. 189 and 365, Rev. Sts., and further that in view of Sec. 366, Rev. Sts., payment of the claim could not be made except by special act of Congress.' Card 7256, December, 1899.

975. An action for damages was commenced against an officer on account of his having placed in confinement, as a deserter, a man who was in fact a discharged soldier. The man had been regularly turned over to him as a deserter, and it was his duty to receive and hold him. The officer applied for counsel, under par. 1057, A. R. (968 of 1895; 1072 of 1901). Advised that the application be referred to the Department of Justice for disposition. 50, 363, November, 1891.

976. An officer proposing to bring suit in the Court of Claims,

1 See par. 968, Army Regulations of 1895 (1072 of 1901).

The Attorney General instructed the local district attorney to appear and defend in the case.