titled in law or equity, and which may be applicable in law or equity to said deficit, shall be duly credited to the amount held by said Dilley, his successor or successors, for the payments to be made as set forth in paragraph 2 of this agreement. "(8) It is expressly understood and agreed by and between the parties hereto that each and all of the terms and conditions of this agreement are for the purpose of effecting a settlement of this matter only, and are not to be considered for any other purpose or in any other manner, either as an admission or denial of any rights of the parties hereto." If Cowen were living the United States would have no right to apply the earnings of his office to payments to individual depositors. The amounts earned by the clerk are assets of his estate after his death, and the United States has no greater power over them than it would have had in his lifetime. The fees and costs earned by Cowen as clerk, and upon which his compensation as clerk is based, would not, therefore, be applicable in law or equity to liquidate a deficit in individual deposits. There is, therefore, no authority to credit them to the amount held by Dilley, his successor. The compensation earned by Cowen should be paid to the executrix of the estate of B. R. Cowen, deceased. The decision of the auditor to this effect is therefore approved. COMPUTATION OF CONTINUOUS SERVICE TO DETERMINE ENLISTMENT PERIOD OF MEN OF THE MARINE CORPS. Men of the Marine Corps enlisted prior to the approval of the act of May 11, 1908 (35 Stat., 110), and who are retained in the service, by authority of section 1422 of the Revised Statutes, for a time beyond the termination of their enlistment periods, are entitled to credit for such overtime in computing continuous service for determining the enlistment period in which such men are serving at the time of the passage of the said act of May 11, 1908, supra. Decision by Assistant Comptroller Mitchell, October 9, 1909: W. G. Powell, major, assistant paymaster, U. S. Marine Corps, appealed September 30, 1909, from disallowances made in his accounts by the Auditor for the Navy Depart ment in settlement No. 1423 D, dated August 18, 1909, as follows: Co. D, 1st Regt. No. 4, Sgt. William H. West. Amount claimed. $55.20 Allowed, Sep. 1-30, 1 mo. as sgt. 4th enl. period--20% for F. S. S Difference disallowed 8/18/09 (P. M. C., 09). $39.00 46.80 Overtime served by a soldier for the convenience of the Government, not allowed in computing longevity pay. Comp. Dec. Aug. 8, 1908, vol. 15, p. 79, in the case of No. 3, Qrmr. Sgt. Charles P. Hill, U. S. M. C., and No. 5, Sgt. Patrick W. Guilfoyle, U. S. M. C. Co. D, 1st Regt., No. 1, 1st Sgt. William H. West. Amount claimed 8.40 101.31 Allowed, Oct. 1-23, 23 da. as 1st sgt. 4th enl. period, at $57 per mo $43. 70 Oct. 24-31, 7 da. as 1st sgt., 5th enl. period, at $61.. Difference in pay, sgt. and 1st sgt. (4th enl. period), $39 and $57 per mo. from Aug. 24-Sep. 30, 1 mo. 7 da 20% increase for F. S. S--- 14.23 22.20 16.02 96. 15 Difference disallowed Aug. 18, 1909, as in case of Sgt. Sergeant West's service record is given as follows: 5. 16 He was retained in the service three months and two days at the end of his first enlistment by authority of section 1422 of the Revised Statutes. The auditor refers to a decision of this office of August 8, 1908 (15 Comp. Dec., 79), as authority for disallowing credit of these three months and two days in computing West's longevity. The only question submitted in this appeal is as to whether or not he is entitled to the credit for this time in computing his enlistment period. As to the computation of continuous service for determining the enlistment period in which a man is serving at the time of the passage of the act of May 11, 1908, the said act provides (35 Stat., 110): "That the present enlistment period of men now in the service shall be determined by the number of years continuous service they have had at the date of approval of this act, under existing laws, counting three years to an enlist ment 52888-VOL 16-10-15 The three months' service in question pertained to his five years' enlistment of July 10, 1896, and was that much in excess of the period he enlisted to serve, but that fact does not make it less service, and the record shows that it was continuous. (See 9 Comp. Dec., 497.) Computing his continuous service to May 11, 1908, the date of the act referred to, he had had eleven years nine months and twenty-five days' continuous service, and was therefore in his fourth enlistment period, and under the decision of this office of August 8, 1908 (15 Comp. Dec., 79), he had two months and five days to serve before he became entitled to the pay of the fifth enlistment period. Deducting six days absent without leave he entered the fifth enlistment period July 21, 1908. I am of opinion, therefore, that during the period of the auditor's settlement he was entitled to the pay of the fifth enlistment period. It was not intended in the decision of August 8, 1908 (15) Comp. Dec., 79), upon which the auditor based his disallowance, to hold that an enlisted man of the Marine Corps was not entitled to credit for all his continuous service in determining his enlistment period. The question was not referred to in the decision, but in computing the time the men whose records were submitted should serve before entering the next enlistment period the short periods of overservice in two cases were not taken into consideration. As a matter of fact, the question here presented was not considered in that decision, but was lost sight of in the important matter of reconciling the law of May 11, 1908, to conditions in the Marine Corps, where enlistment periods are not the same as in the army, for which the law was primarily enacted. It should not be understood by this decision that the time a marine is held beyond his enlistment after the passage of the act of May 11, 1908, is to be counted in making up the three years' periods of service. In the decision of August 8, 1908 (15 Comp. Dec., 79), a construction was placed upon the law which, in view of section 1612, Revised Statutes, would give to the marine (as near as the conditions would admit) the same continuous-service pay as an enlisted man of the army. As the enlistment period of the latter does not change until a discharge and reenlistment, he receives no benefit from time he is held over, and, therefore, to place them on an equality, the marine should not receive benefit from the time he is held over after expiration of an enlistment subsequent to May 11, 1908. The auditor's disallowance appealed from is disaffirmed and a difference is found in favor of the appellant of $13.56. ADDITIONAL COMPENSATION OF HORSESHOER IN THE ARMY. The one of the two "farriers and blacksmiths" authorized by the act of February 2, 1901 (31 Stat., 748), who is designated as "horseshoer" under the act of March 3, 1909 (35 Stat., 735), is entitled to the $9 additional pay provided by the acts of May 11, 1908 (35 Stat., 109), and March 3, 1909, supra, only during the time that he retains the designation and performs the duty of "horseshoer." A "farrier and blacksmith” retired at a time when he is designated as "horseshoer" under the act of March 3, 1909, supra, is entitled to three-fourths of $21 per month, or the pay of the grade of "farrier and blacksmith" which he holds, with the increase provided for continuous service. Assistant Comptroller Mitchell to the Secretary of War, October 9, 1909: I have received your communication of the 1st instant requesting my decision of questions presented by you as follows: "1. Whether the grade of horseshoer' in the cavalry carries pay at the rate of $30 per month, or whether the pay of such grade is $21, plus $9, per month for such time as the holder of the grade is in performance of full duty as distinguished from being on furlough, absent, sick, etc. 2. Whether a horseshoer of cavalry, retired as such, is entitled to three-fourths of $30 per month, with the provided increase for continuous service.' Section 1280 of the Revised Statutes provides: "The monthly pay of the following enlisted men of the army shall, during their first term of enlistment, be as follows: * * * blacksmiths and farriers of cavalry, fifteen dollars." The act of February 2, 1901 (31 Stat., 748), provides: "That each troop of cavalry shall consist of * farriers and blacksmiths, * * * two The act of May 11, 1908 (35 Stat., 109), provides: "That hereafter the monthly pay of enlisted men of the army during their first enlistment shall be as follows, namely: * blacksmiths and farriers, * * * twenty-one dol * * lars: Provided, That not to exceed one blacksmith and farrier in each troop of cavalry * * shall receive nine dollars per month additional for performing the duty of horseshoer; * * The act of March 3, 1909 (35 Stat., 735), provides: "That one of the two blacksmiths and farriers' now authorized by law for each troop of cavalry shall hereafter be designated farrier,' and the other horseshoer,' and that the additional pay of nine dollars per month provided for one blacksmith and farrier in each troop of cavalry for performing the duty of horseshoer' in the act of Congress approved May eleventh, nineteen hundred and eight, shall be paid to the soldier designated as 'horseshoer.' The act of February 2, 1901, provides that each troop of cavalry shall consist of two "farriers and blacksmiths," and the act of May 11, 1908, fixes the pay of this grade at $21 per month, but provides, "That not to exceed one blacksmith and farrier in each troop of cavalry and mechanic in each battery of field artillery shall receive nine dollars per month additional for performing the duties of horseshoer." The act of March 3, 1909, provided that one of the two "blacksmiths and farriers" now authorized by law for each troop of cavalry should be designated "farrier" and the other "horseshoer." It does not, however, specify what shall be the pay of the persons so designated, but does provide that the additional pay of $9 per month "provided for 'one blacksmith and farrier in each troop of cavalry for performing the duty of horseshoer' in the act of Congress approved May eleventh, nineteen hundred and eight, shall be paid to the soldier designated as horseshoer."" Did this act create two new grades in place of the grade of "blacksmith and farrier?" If it did so, it did not fix the pay of either except by implication. The only implication on which their pay could be based is that the one of the two who was designated as a farrier under the act of March 3, 1909, should receive the pay of a "blacksmith and farrier" provided for in the act of May 11, 1908, and the other designated as a "horseshoer" |