money, credited to his account as agent, were used in other ways than for the benefit of the Company.

In the summer of 1873 he was behind in his accounts with the Company and a special agent was sent to Baltimore to get a settlement. For the convenience of adjustment the accounts were divided into three classes and each class examined separately. On the 9th of July, upon a statement of one part of the account as classified, a balance of $12,572.52 was found due from him to the Company. He had at the time not more than five or six thousand dollars to his credit in bank, and to meet this payment asked permission of the president of the Bank to overdraw his account, saying that his agents were behind in their remittances, but he would hurrying by an insurance agent to enable him to rethem up and soon make the deficit good. Getting the consent of the Bank he made his check in favor of Alexander Brown & Sons for the amount due from him, and bought a bill on London which was remitted the Company and afterwards paid by the drawees in the ordinary course of business.

On the 19th of July, upon the completion of the adjustment of another part of the account, a further amount was found due from Jackson to the Company of $5,520.48. He then drew another check in favor of Alexander Brown & Sons for this amount, and asked again for permission to overdraw, at the same time showing the check. After a repetition of substantially the same statements he had made on the former occasion, this check was certified by the direction of the president and handed back to him. He took it to Brown & Sons and bought another bill, which was sent forward to the Company and paid in London. Before the remainder of his accounts were adjusted he left Baltimore, and his agency was revoked on 24th or 25th of July. The Bank then called on the Company to repay the overdraft, claiming that the money advanced was in fact a loan to the Company. The Company declined to recognize any liabil

sumed from the single fact that the agent of the Company, who was also agent of other parties, Isaw fit to keep his bank account in his name as agent without indicating for whom. The natural inference, from the facts presented to the Bank, certainly is, as the truth was, that the agent wanted the accommodation to enable him to meet his own obligations to the Company in anticipation of the remittances of his subagents. Such a borrowing does not charge the Company as a borrower. True, the Company has saved what the Bank has lost, but not in a way to make itself liable to restore what it has got. The Bank trusted the agent, not the Company. No other reasonable construction can be put on the acts of the parties at the time. A borrowmit his company the proceeds of his business is prima facie the borrowing of the agent himself rather than the company, and will be so treated unless the contrary is shown. Any other rule would be dangerous in the extreme. There is here no question of ratification. This can only arise where the borrowing is by the agent for the company without authority, and the company adopts by its acts what was done by the agent. Here the borrowing was by the agent for himself and not the Company. It was clearly right, therefore, for the court to tell the jury, in advance of the verdict, that upon the evidence they must find for the Company. Pleasants v. Fant, 22 Wall.,116 [89 U.S.,XXII., 780].

The judgment is affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-104 U. S., 66; 28 Kan., 419.

WILLIAM H. COOK, Appt.,

v.

CHARLES LILLO.

(See S. C., 13 Otto, 792-794.)

ity, and this suit was brought to recover the bal- Note when not payable in confederate money— ance that was due as for money loaned.

These facts are undisputed, and we think it clear if the jury had been permitted to pass on the evidence, and had found against the Company, their verdict should have been promptly set aside by the court. In point of fact the money was borrowed by Jackson to pay what he owed the Company. His application was not made in the name of the Company, and although his account was kept in his name as agent, it was, in reality, his individual account and not that of the Company. That the money was borrowed to remit the Company, must have been understood by the Bank. The checks were in the form that had been used for a long time in making such remittances; and when money had been borrowed before to pay losses, it had always been done on the bills of Jackson drawn on the Company in London. The form, then, which the transaction assumed, as claimed by the Bank, is that of an application by a large foreign Insurance Company, through one of its agents in this country, for the privilege of overdrawing its bank account at the agency, so that funds might be remitted to the home office abroad a few days in advance of anticipated receipts from current business. So unusual and improbable a thing as this can hardly be pre

Louisiana usury law.

1. Notes, given during the war, at New Orleans, on which payments to a large amount, both of principal and interest, have been made, and always in lawful money or its equivalent, where no claim was ever made that the notes called for confederate dollars until about the time of the commencement of this suit, which was fifteen years after the notes were given, and after thousands of dollars had been paid and many extensions of time secured, will be federate dollars. held to be payable in lawful money and not in con

2. In Louisiana, a reclamation of interest cannot be made, nor the usurious interest imputed to the principal, unless the suit for the recovery is begun. or plea of usury set up to the claim, within twelve months after the payment is made.

[No. 212.]

Submitted Jan. 26, 1881. Decided Mar. 21, 1881.

APPEAL from the Circuit Court of the United

States for the District of Louisiana.
The case is fully stated by the court.

Messrs. Charles B. Singleton, Richard H. Browne and John A. Campbell, for appellant.

Messrs. C. E. Schmidt and Thomas J. Semmes, for appellee.

tender of. See note to Thorington v. Smith, 75 U. S., NOTE.-Contracts payable in confederate notes: XIX., 361.

Mr. Chief Justice Waite delivered the opin- | decided by the highest court of the State in ion of the court:

several cases that money paid for usurious interIt has long been settled in this court that est could not be reclaimed or imputed to the transactions in confederate money during the capital. Perrillat v. Puech, 8 Mart. (N. S.), late civil war between the inhabitants of the 671; Millaudon v. Arnous, 3 Mart. (N. S.),596; Confederate States within the confederate lines, Poydras v. Turgeau, 14 La., 37; Bk. v. Gove, 15 not intended to promote the ends of the Con- La., 378; Coxe v. Rowley, 12 Rob. (La.), 273. federate Government, could be enforced in the Since the statute, it has been held that a reclaCourts of the United States, after the restoration mation cannot be made nor the usurious interof peace, to the extent of their just obligation. est imputed to the principal, unless the suit for Thorington v. Smith, 8 Wall., 1 [75 U. S., XIX., the recovery is begun or plea of usury set up 361]. It is equally well settled that if a con- to the claim, within twelve months after the paytract entered into under such circumstances, ment is made. Cox v. McIntyre, 6 La. Ann., payable in dollars, was, according to the under- 470; Weaver v. Maillot, 15 La. Ann., 395. In standing of the parties, to be paid in confeder-view of these decisions, the appellant was not ate dollars, upon proof of that fact the party entitled to any credit on the principal of his entitled to the payment can only recover the debt by reason of usurious interest paid, bevalue of confederate dollars in the lawful money cause his last payment of interest was made in of the United States. Idem. March, 1875, and this suit was not begun until January 11, 1877, more than twelve months afterwards.

of Iowa, and unless he could be sued, no attach-have for years been accumulating with the ment could issue from that court against his greatest care, before the church and the counproperty. An attachment is but an incident to try at large." After this letter came to the a suit, and unless the suit can be maintained the hands of the post commandant, his attention attachment must fall. The Act "Providing the was called to the mental condition of the chaptimes and places of holding the Circuit Courts of lain, and it was suggested that the latter was the United States in the District of Iowa," 21 not responsible for his act in writing the foreStat. at L., 155, ch., 120, divides that district going letter. The letter was retained until 31st into four divisions, and requires suits against an December, 1868, for the purpose, perhaps, of inhabitant of the district to be brought in the ascertaining his condition, and then forwarded division in which he resides. The provision by the commandant with an indorsement recthat, "Where the defendant is not a resident of ommending an acceptance of the resignation the district, suit may be brought in any division and saying, among other things, that "The tenor where property or the defendant is found" (sec. of this and other communications forwarded 2), applies only to suits which may be properly will, no doubt, convince the department combrought in the district against a non-resident. mander of his utter uselessness in the position Such a suit, if not local, must be in the division he holds." where the defendant is found when served with | The letter of December 24, 1868, was forwardprocess; if local, in the division where the prop-ed through the district and department headerty, which is the subject-matter of the action, is situated. There is not manifested anywhere in this Act an intention of repealing section 739, so far as it affects the Iowa district. Denied.

quarters, and, finally, through the headquarters of the military division of the Pacific, to the Secretary of War, by whom it was transmitted to the President, who accepted the resignation, to take effect March 17, 1869. Each of the commanding officers through whose office the letter James H. McKenney, Clerk, Sup. Court, U. S. passed, recommended an acceptance of the res ignation.

True copy. Test:

Cited-108 U. S., 567.

CHARLES M. BLAKE, Appt.,

C.

UNITED STATES.

(See S. C., 13 Otto, 227-237.)

On the 28th of March, 1869, Blake telegraphed to the delegate in Congress from the Territory of Arizona, stating that he did not intend to resign, and that if his letter was construed as a resignation, to withdraw it immediately. When the Secretary of War was informed of that telegram, he stated that Blake's resignation had been accepted and was beyond recall.

Blake, having received official notice of such

President's power to remove an officer-Act con- acceptance, addressed the following letter to the

strued.

*1. The true construction of the 5th section of the

Secretary of War:

"NAPA CITY, CAL., Ap'l 27th, 1869. HON. JOHN A. RAWLINS,

Army Appropriation Act of July 17, 1866, 14 Stat. at L., 92, is, that, whereas, under the Act of July 17, Secretary of War, Washington, D. C.: 1862, 12 Stat. at L., 596, as before its passage the DEAR SIR: To my great surprise I was yesPresident alone had the power to dismiss an officer in the military or naval service for any cause which terday informed, thro' H'd Q'rs Dep't of Caliin his judgment either rendered the officer unsuit-fornia, that my resignation as post chaplain, able for, or whose dismissal would promote the U. S. Army, had been accepted by the President,' to take effect March 17th, 1869.'

public service, he alone, shall not thereafter in time

of peace exercise such power of dismissal except in pursuance of a court-martial sentence to that effect, or in commutation thereof.

2. Congress did not intend by the Act of July 17, 1866, to deny or restrict the power of the President, with the concurrence of the Senate, to displace off cers in the army or navy, by the appointment of others in their places.

[No. 773.]

As I am not aware of having at any time restate of feeble health, caused by efficient services signed my commission, and as I am now in a in the line of duty in 1863, 1864 and since, I beg that the favorable reconsideration of the President may be given to my case, and that I may be ordered before a retiring board for examina

Submitted Jan. 19, 1881. Decided Mar. 30, 1881. tion, and to duty if fit for it.

APPEAL from the Court of Claims.

Justice to the service, no less than to myself and family, after eight years of devoted labors, will not permit me to be silent in view of the wrongs done me at Camp McDowell, A.T., and I am confident that you will not allow me to suffer wrongfully.

I have the honor to remain, with great respect, your ob'd't servant, (Signed)

Statement of the case by Mr. Justice Harlan: From the finding of facts, in the Court of Claims, it appears that appellant, a post chaplain in the Army of the United States, stationed at Camp McDowell, in the Territory of Arizona, addressed to the Secretary of War, under date CHARLES M. BLAKE, of December 24, 1868, a communication in (Late) Post Chaplain, U. S. A.” which he complained of unjust treatment to This letter was referred to the Adjutant-Genwhich, during several years, he had been sub-eral, who returned it with this indorsement: "Rejected by various officers. He asked for the spectfully returned to the Secretary of War with fullest and most thorough investigation of the the paper on which the resignation of Chaplain facts, and concluded: But if this cannot be Blake was accepted. Chaplain Blake appears done, then I wish to tender to the Honorable, not to be of sane mind. E. D. Townsend, Adjtthe Secretary of War, my resignation as a chap- Genl." lain of the army, and to lay the facts, which I

*Head notes by Mr. Justice HARLAN.

On the 7th July, 1870, President Grant nominated to the Senate six persons to be post chap

*

*

*

By command of General Sherman.
(Signed.)

E. D. TOWNSEND,

*

lains in the army, to rank from July 2, 1870, | officer, department of Arizona, for assignment among whom was "Alexander Gilmore, of New to duty. Jersey, rice Blake, resigned." Gilmore's nomination was confirmed on the 12th July, 1870, and on the 14th of the same month, he was commissioned, as post chaplain, to rank as such from July 2, 1870. He has since regularly received his salary and performed his duties as such post chaplain.

Adjutant-General." Messrs. George H. Williams and R. P. Lowe, for appellant.

Messrs. Charles Devens, Atty-Gen. and John S. Blair, for appellee.

Mr. Justice Harlan delivered the opinion of the court:

It is found, as a fact, by the Court of Claims, that for some time prior to, and on, the 24th of December, 1868, Blake had been suffering from physical disease, and from mental prostration; that in the light of subsequent events, there The present action was instituted by Blake can be no doubt he was then insane,' that he was, to recover the amount due him, by way of salat times, irritable and incoherent, manifestingary as post chaplain, from the 28th of April, egotism and suspicion of his superiors; that not 1869, to the 14th of May, 1878. The claim is until after the above date were these symptoms placed upon the ground that before, at the date developed to such an extent as necessarily to in- of, and subsequent to the letter addressed to the duce persons who came in contact with him to Secretary of War, which was treated as his resbelieve he was mentally incapable of acting ignation, he was insane in a sense that rendered with sound reasoning purpose; also that, at the him irresponsible for his acts and, consequently, date of the telegram to the delegate from Ari- that his supposed resignation was inoperative zona he was totally unqualified for business,' and did not have the effect to vacate his office. and, at the date of the letter of April 27, 1869, His petition was dismissed, and from the judg"he was not of sound mind." ment of dismissal this appeal is prosecuted. Did the appointment of Gilmore, by and with the advice and consent of the Senate, to the post chaplaincy held by Blake, operate proprio vigore, to discharge the latter from the service, and invest the former with the rights and privileges belonging to that office? If this question be answered in the affirmative, it will not be necessary to inquire whether Blake was, at the date of the letter of December 24, 1868, in such condition of mind as to enable him to perform, in a legal sense, the act of resigning his office; or, whether the acceptance of his resignation, followed by the appointment of his successor, by the President, by and with the consent of the Senate, is not, in view of the relations of the several departments of government to each other, conclusive, in this collateral proceeding, as to the fact of a valid effectual resignation.

It is also found as a fact that the insanity of
Blake continued until about the year 1874.
On the 28th of September, 1878, President
Hayes made the following order:

"EXECUTIVE MANSION,

September 28, 1878.

It appearing from the evidence, and from the reports of the surgeon-general of the army and the superintendent of the government hospital for the insane, that Chaplain Blake was insane at the time he tendered his resignation, it is held that said resignation was and is void, and the acceptance thereof is set aside. Chaplain Blake will be ordered to duty, and paid from the date of the resignation of Post Chaplain Preston Nash, to wit: May 14th, 1878, by which resignation a vacancy was created, which has not been filled. The claim of Chaplain Blake for pay from the date of his resignation to May 14th, 1878, during which his successor held the office, discharged its duties, and received pay is not decided, but is left for the decision of the court, where it is understood to be now pending.

R. B. HAYES."

On the 2d October, 1878, the following order was issued by direction of the General of the Army:

"HEADQUARTERS OF THE ARMY, ADJUTANT-GENERAL'S OFFICE, Washington, October 2, 1878. 1 It appearing from the evidence presented, and from the reports of the surgeon-general of the army and the superintendent of the government hospital for the insane, that Post Chaplain Charles M. Blake, U. S. Army, was insane at the time he tendered his resignation, December 24, 1868, said resignation is, by direction of the President, declared void, and the acceptance of the same in letter from this office, dated March 17, 1869, as announced in Special Orders No. 62, March 17, 1869, from this office, is set aside.

Chaplain Blake is restored to the list of post chaplains of the army with his original date of rank, and with pay from May 14, 1878, since which date a vacancy in that grade has existed. He will report in person to the commanding

From the organization of the Government, under the present Constitution, to the commencement of the recent war for the suppres sion of the rebellion, the power of the President, in the absence of statutory regulations, to dismiss an officer of the army or navy from the service was unquestioned in any adjudged case, or by any department of the Government.

Upon the general question of the right of removal from office, as incident to the power of appointment, the case of Ex Parte Hennen, 13 Pet., 259, is instructive. That case involved the authority of a district judge of the United States to remove a clerk and appoint some one in his place. "All

The court, among other things, said: offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior, or, which is the same thing in contemplation of law, during the life of the incumbent, or must be held at the will and discretion of some department of the Government, and subject to removal at pleasure.

It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional pro

vision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this Government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate; and the great question was whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate jointly to remove, where the tenure of the office was not fixed by the Constitution; which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution." 1 Kent, 309 et seq.; 2 Story, Const., 4th ed., secs. 1537-1540, and notes; 2 Marshall, Life of Washington, 162; Sergeant, Const. L., 372; Rawle, Const., ch. 14.

does not follow that they are not subject to be deprived of their commission at the will of the President.

I am not aware of any ground of distinction in this respect, so far as regards the strict question of law, between officers of the army and any other officers of the Government. As a general rule, with the exception of judicial officers only, they all hold their commissions by the same tenure in this respect. Reasons of a special nature may be deemed to exist why the rule should not be applied to military in the same way as it is to civil officers, but the legal applicability to both classes of officers is, it is conceived, the settled construction of the Constitution. It is no answer to this doctrine to say that officers of the army are subject to be deprived of their commissions by the decision of a court-martial. So are civil officers by impeachment. The difference between the two cases is in the form and mode of trial, not in the principle, which leaves unimpaired in both cases alike the whole constitutional power of the President.

It seems unnecessary in this case to recapitulate in detail the elements of constitutional construction and historical induction by which this doctrine has been established as the public law of the United States. I observe only that, so far as regards the question of abstract power, I know of nothing essential in the grounds of legal conclusion, which have been so thoroughly explored at different times in respect of civil officers, which does not apply to officers of the army."

The same officer, subsequently, when required to consider this question, said that "The power has been exercised in many cases with approbation, express or implied, of the Senate, and without challenge by any legislative Act of Congress. And it is expressly reserved in every commission of the officers, both of the navy and army." [Navy Efficiency Act] 8 Ops. Attys-Gen., 231.

During the administration of President Tyler, the question was propounded by the Secretary of the Navy to Attorney-General Legare, whether the President could strike an officer from the rolls, without a trial by a court-martial, after a decision in that officer's favor by a court of inquiry ordered for the investigation of his conduct. His response was: "Whatever I might have thought of the power of removal from office, if the subject were res integra, it is now too late to dispute the settled construction of 1789. It is according to that construction, from the very nature of executive power, absolute in the President, subject only to his responsibility to the country (his constituents) for a breach of such a vast and solemn trust. 3 Story, Com. Such was the established practice in the ExecConst., 397, sec. 1538. It is obvious that if utive Department and such the recognized pownecessity is a sufficient ground for such a con- er of the President up to the passage of the Act cession in regard to officers in the civil service, of July 17, 1862, 12 Stat. at L., 596, entitled the argument applies a multo fortiori to the mili-"An Act to Define the Pay and Emoluments tary and naval departments. ** * I have no doubt, therefore, that the President had the constitutional power to do what he did, and that the officer in question is not in the service of the United States." The same views were expressed by subsequent Attorneys-General. [Power of Pres. to dismiss, etc.] 4 Ops. AttysGen., 1; [Military Storekeeper, Remov. etc.] 6 Ops. Attys-Gen., 4; [Navy Efficiency Acct.] 8 Ops. Attys-Gen., 233; [Case of Col. Belger] 12 Ops. Attys-Gen., 424; 15 Ops. Attys-Gen., 421. In Du Barry's Case, 4 Ops. Attys-Gen., 612, Attorney-General Clifford said that the attempt to limit the exercise of the power of removal to the executive officers in the civil service found no support in the language of the Constitution nor in any judicial decision; that there was no foundation in the Constitution for any distinction in this regard between civil and military officers.

In Lansing's Case, 6 Ops. Attys-Gen., 4, the question arose as to the power of the President, in his discretion, to remove a military storekeeper. Attorney-General Cushing said: "Conceding, however, that military storekeepers are officers or, at least, quasi officers, of the army, it

of certain Officers of the Army, and for Other Purposes," the 17th section of which provides that "The President of the United States be and hereby is authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps or volunteer force, any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service."

In reference to that Act, Attorney-General Devens, 15 Ops. Attys-Gen., 421 said, with much reason, that so far as it "gives authority to the President, it is simply declaratory of the long established law. It is probable that the force of the Act is to be found in the word requested, by which it was intended to re-inforce strongly this power in the hands of the President at a great crisis of the State."

A subsequent statute, passed March 3, 1865, 13 Stat. at L., 489, provides that, in case any officer of the military or naval service, thereafter dismissed by the authority of the President, shall make application in writing for a trial, setting forth, under oath, that he has been wrongfully and unjustly dismissed, "The President