pending charge against a soldier, upon his giving a pledge to abstain in the future from the conduct which was the subject of the charge, did not operate as a pardon and could not be pleaded as such. Had it been done by an order of the President, it could have had no further operation than as a quasi conditional pardon, leaving the charge legally renewable upon a repetition of the offence. 35, 423, October, 1889.

1883. The reappointment to the army of a dismissed officer does not operate as a condonation. The dismissal remains a dishonorable separation from the service. Card 2893, January, 1897.

PATENT.

1884. The presumption in favor of the validity of a patent, arising from the action of the authorities in granting it, can be overcome only by reliable and certain proof.1 The grant of letters patent is prima facie evidence that the patentee was the first inventor of the device described in the letters, and of its novelty. So, held that a claim by a patentee for a reasonable royalty for the use of his patent by the United States was not impugned by the affidavits of a third party to the effect that he was the real inventor, when such party had taken no action to contest the issuance of the patent nor resorted to the courts for his legal remedies. 53, 416, May, 1892. The use of a patent with the knowledge and consent of the patentee is an implied promise or agreement to pay for the same. Card 725, December, 1894.

3

1885. An existing royalty on a patented article is in the nature of a legal lien upon it, to be paid off before it can be safely used, and is also an element properly entering into the price to be paid for it, if purchased. The article is in law sold subject to this claim. So, held that the United States, in purchasing a patented article, as being necessary to the due prosecution of a certain work provided to be done. by an appropriation act should justly pay a price estimated by the intrinsic value of the article, augmented by the probable amount of the royalties likely to accrue as income. 44, 358, December, 1890.

1886. An invention is property though it be not patented, and an injunction will be granted to restrain an infringement though the patent has been merely applied for. Thus it is safer for the United States not to purchase the right to use an invented article from any person other than the inventor, since a liability to the latter might thus attach.* 43, 264, October, 1890. Held that, should the Government make a purchase-from a person other than the inventor but claiming to be such

1 Osborne v. Glazier, 31 Fed. Rep. 402. 2 Cantrell v. Wallick, 117 U. S., 695.

3 McKeever v. U. S., 18 Ct. Cls. 757.
*See James v. Campbell, 104 U. S., 356.

of telephones, the sale of which had been enjoined by the real patentee, the United States would be liable to him in damages, whether or not the fact of infringement or illegal sale was actually known at the time of the purchase. 57, 297, January, 1893. The Government becomes a tort-feasor in permitting the use in its service of an infringed patent.1 Card 725, December, 1894.

2

1887. Held, on the authority of the ruling of the Supreme Court in Major Burns' case, that Capt. E. L. Zalinski, 5th Artillery, was entitled to compensation for the use by the United States of his patented pneumatic gun. 31, 106, March, 1889.

1888. The assignment to the United States of a patent right, for use in the public service, does not preclude the assignor from also assigning the right to a foreign government, provided the original assignment were not absolute in its terms. A sale of patent right for use in one district is not incompatible with a sale for use in another, such sales being in the nature of independent licenses. But, as a general rule, the United States should accept in such a case nothing short of an absolute assignment. 54, 214, June, 1892.

1889. The United States cannot be sued in the courts for the profits accruing to it by reason of the manufacture and use of a patented article, unless there is either an express or implied contract for such manufacture and use; nor, where the article is being manufactured under the direction of the War Department, has that department jurisdiction over such a claim. In the absence of such jurisdiction, the claim cannot be said to be "pending" in that department within the meaning of section 12, of the act of March 3, 1887.

July, 1897.

Card 3392,

1890. The United States should not refrain from purchasing necessary supplies simply because there might be involved in the transaction an infringement of some one's patent. In such a case, however, a bond should be required to indemnify the United States against any loss it might sustain on account of possible infringment of patents in the use of the article purchased. Card 4558, July, 1898.

1891. While it is clearly a violation of law (act of February 18, 1893, 27 Stats., 461) for the inventor of a device (range finder) considered and adopted by the Board of Ordnance and Fortification "to be a member or serve on said board", the act does not, where he has in fact so served, prohibit the purchase of the instrument invented by him. It merely affects his eligibility for membership of or service on the board. Card 6941, August, 1899.

'See Schillinger v. U. S., 155 U. S., 163.

16906-01-34

2U. S. v. Burns, 12 Wallace, 246.

PAY ACCOUNT.

1892. An officer's "pay account" is not commercial paper, but, in its legal aspect, a mere receipt.' So held that a bona fide assignee of an officer's pay account for a certain month, who, on receiving payment thereon from a paymaster, delivered to the latter the account with his name written on the back of the same, did not thereby incur the obligation of an endorser, or render himself liable as such for the amount to the paymaster, on its being ascertained that the officer had already himself drawn his pay for that month, and that a double payment had thus been made. XLIII, 68, October, 1879.

1893. Held that it was no sufficient defence to a charge, under Art. 60 or Art. 61, of duplication of a pay account, that the accused had an understanding with the first assignee that he was not to present the account assigned to him till the accused should have an opportunity to withdraw it and substitute other security. The fact that an accused assigns a second account, while the first, without the knowledge of the second assignee, is still outstanding in the hands of the first assignee, completes the offence. 50, 45, 219, October and November, 1891.

PAY AND ALLOWANCES.

I-IN GENERAL.

1894. Pay is the monthly pecuniary compensation of officers and soldiers of the army, as fixed by Secs. 1261, 1280, &c., Rev. Sts. It is quite distinct from "allowances."3 A sentence forfeiting pay does not affect allowances or vice versa. II, 193, April, 1863; VIII, 578, June, 1864; X, 565, November, 1864; XXXII, 41, October, 1871; Card. 1042, February, 1895.

1895. The right to pay begins and ends with the period of legal service. Except by special authority of Congress, an officer or soldier cannot be paid for military service rendered before appointment, enlistment or muster-in. XXXVIII, 120, July, 1876. A soldier, however, who, by accident or through some exigency of the service, is held to service for a period after the date on which bis term of enlistment expired, is properly entitled to be paid for such additional period. XXIX, 424, November, 1869; XXXVIII, 662, July, 1877. So, a soldier, detained in the service, after his term of enlistment has expired, by reason of the pendency of proceedings under charges pre

1 Note in this connection the opinion of the Attorney General, in 16 Opins., 191, to the effect that an approved account or voucher issued to a contractor for an amount due him under his contract is "not in any proper sense negotiable paper." 2"It is the intention of the law" (see Sec. 1189, Rev. Sts.) "that the pay of the army should not be in arrears more than two months." 15 Opins. At. Gen. 209. See 10 Opins. At. Gen. 285; McNaghten, 27.

ferred against him, and who, upon trial, is acquitted, or sentenced to a punishment not including forfeiture of pay, and is thereupon discharged, is entitled to be paid up to the date of discharge. XXI, 448, June, 1866. An officer separated from the service by dismissal, being dropped for desertion, "wholly" retired, or by acceptance of resignation, is entitled to be paid up to the day on which he personally receives official notice of the order or act thus detaching him from the army and making him a civilian. XXVIII, 423, 426, March, 1869; XXX, 549, August, 1870. An officer or soldier cannot be dismissed, discharged, or mustered out as of a prior date, with the effect of depriving him of pay accrued between that date and the date of the actual discharge, &c. XVI, 406, July, 1865; XXII, 506, December, 1866.

2

1896. While he remains in the military establishment, an officer or soldier, whether or not actually performing military service, can be deprived of his legal pay, only through a duly adjudged and approved sentence of court martial, or by the operation of law under some express statutory enactment or army regulation. The fact that an officer or soldier is under charges, in arrest, or waiting sentence, cannot (except in so far as his case may be within the application of army regulations, see § 1902, post) affect in any manner his right to the regular pay of his rank. XII, 230, January, 1865.

3

1897. A sentence expressly forfeiting all pay due a soldier applies only to pay due him under his pending contract. It will not affect pay which may be due for service rendered under a previous enlistment and not yet settled. XIV, 371, April, 1865; XLII, 73, December, 1878.

1898. A dismissal of an officer by order of the President does not involve a deprivation of any part of the pay due him, and if the order is so expressed as to dismiss him "without pay or allowances," or in terms to that effect, it is, as to this portion, unauthorized and inoperative. X, 216, August, 1864; XLII, 73, December, 1878; 470, January, 1880. So where a legal muster into service of a volunteer officer was revoked by order, after an interval of service rendered, with the effect (given to the order) of depriving him of pay for such service, held that the so-called revocation was unauthorized and inoperative. A

'See Allstaedt v. United States, 3 Ct. Cls. 284; 7 Comp. Dec. (dated March 16, 1901). See §§ 1848 and 1849, ante. On the other hand, where an officer, who has been dismissed, is restored (by the authority of Congress) to office with the rank which he had when dismissed, or other rank of a date prior to the restoration, he is not thereby entitled to back pay. In such cases, in the absence of any grant of pay in the statute, "the relation back is for rank only, not pay." 4 Opins. At. Gen., 603; 5 id. 101, 132; 9 id. 137.

"See, to the same effect, the opinion of the Attorney General in 15 Opins. 175, and, on the general principle that pay cannot be forfeited by implication, see § 1380, ante. * See § 509, ante.

legal executive act cannot be thus nullified to the prejudice of a vested right. XLII, 470, supra.

1899. An officer or soldier cannot be deprived of his pay by means of any civil process of attachment or levy on execution. So where a wife, in an action of divorce against her husband, a captain in the United States service, obtained an interlocutory judgment for an allowance pendente lite-held, that there was no precedent or legal ground for requiring him to satisfy the amount of such judgment out of his pay. VIII, 493, May, 1864.

1900. The Secretary of War is without authority to appropriate or stop an officer's pay for the use of his family, or to satisfy a judgment or decree of a civil court growing out of an obligation of a private character. But he may of course cause such officer to be brought to trial by court martial for dishonorable conduct in the treatment of his family or with respect to the obligation referred to. Cards 3500, September, 1897; 3819, January, 1898; 5482, December, 1898; 6882, August, 1899. Nor in the case of a retired officer, alleged to be irresponsible, has the Secretary of War authority to designate a person to receive and distribute such officer's pay. In such case, the appointment of a guardian by the proper court should be secured by the parties interested. Card 4636, July, 1898.

1901. By operation of law, indeed, under certain express statutory provisions, an officer's or soldier's pay may be withheld altogether, or temporarily, or be subjected to certain charges and thus reduced. Thus, by Sec. 1265, Rev. Sts., an officer absent without leave forfeits all pay during the period of his absence, unless the same be excused as unavoidable. By Sec. 1266, an officer dropped from the rolls for an unauthorized absence of three months is required to "forfeit all pay due or to become due." Sec. 1766 prohibits the payment of his compensation to any person while he continues "in arrears to the United States." Secs. 1303 and 1304 require in effect that the cost of damage done to arms, &c., and the value of military stores found deficient, shall, except where the loss is occasioned by no personal fault of the party, be charged against the pay of the officer or soldier responsible for the damage or deficiency. XLI, 156, March, 1878. 1902. So, by pars. 132 and 1514, Army Regulations (132, 133, and 1381 of 1895),' it is directed that no enlisted man shall receive pay or allowances for any time during which he has been absent without leave; and, further, that a deserter shall forfeit all pay and allowances due him at the time of his desertion. These forfeitures are incurred by operation of law, upon the commission of the offence, independently of any punishment for the same by sentence of court martial, and it is not essential to their taking effect that the offence should have been 1 See pars. 143, 144, and 1558, A. R. of 1901.