#### CAVENDER’S CASE. John T. Cavender *v.*The United States.

*On the*Proofs.

*An enlisted reemit at Ms draft rendezvous deposits his enlistment boimty with a paymaster, and receives a eheelc-boolc therefor, in pursuance of an order of the War Department.. So reports for duty with Ms regiment, and then assigns to the claimant the sum deposited, and delivers to him the eheelc-boolc. The claimant, at the same time, advances to the soldier the amoimt deposited. Before the claimant collects the bounty the soldier deserts. The chealc-boolc and assignment are presented by the claimant to the Pay Department, but payment is refused. It does not appear that the soldier was convicted of desertion, but only that he was reported as having deserted.*

I. At tlie common law a chose in action was from its nature deemed unassignable, and the same x>rineiple formerly covered claims against the United States, but the acts establishing and re-organizing the Court of Claims provide for the litigation of assigned claims. They may be litigated and do not come witbin the prohibition of the *Ael February*2(3, 1853, (10 Stat. L., 170.)

II. The order of the War Department, No. 305, which prohibits a recruit from having more than $20 in his possession, and requires that it be taken from him and kept on deposit, nevertheless allows him to assign the deposit after he arrives at.his regiment, for it provides that then he may claim payment from the paymaster who pays his regiment. If it is right to claim it, it is subject to his disposal and he may assign it.

III. A soldier whose money was taken from him at the recruiting rendezvous to be kept on deposit as provided by General Orders No. 305, War Department, does not forfeit it to the Government by the mere charge of desertion. The order prohibiting the payment of bounties, &c., until such a charge is removed is merely directory to the Department, and does not affect his legal rights.

*The Reporters'*statement of the case:

Tbe court found, among others, tbe following facts:

That tbe several persons named in tbe schedule hereto annexed and marked “A” were enlisted soldiers, mustered into the Second Eegiment Ohio Volunteer Cavalry in 1865, at Columbus, Ohio.

That, in conformity with the general order of the War De*282partment No. 305, each of them at his draft rendezvous deposited the sum written against his name in said schedule with the proper paymaster, and received a check-boob in which said sum was entered and duly certified.

That each of said soldiers reported for duty with his regiment at the date specified in said schedule.

That each of said soldiers, after his arrival at his regiment and at the date specified in said schedule, assigned the sum deposited by him and delivered the check-boob received by him to the petitioner.

That the petitioner paid and advanced in cash to each of said soldiers a sum 10 per cent, less than the amount of his deposit, at the time of said assignment and in consideration thereof.

That each of said soldiers, after the assignment made by him, was charged with having deserted from the Army *of*the United States at the time specified in said schedule. And the charge of his desertion has not been removed.

That each of said assignments, with the check-book connected therewith annexed thereto, was, in the fall of 1866, sent to the paymaster at Columbus, in the State of Ohio, and presented for payment, and was returned to the petitioner unpaid.

*Schedule A.*No. Name. ■William Meraum... William C. Sheets.. Corwin Rose.James Brown. Edward Hann.. William M. Robb... Anthony McG-raw.. Xsaao Dillon.. William B. Sheets... Silas Ryan. Thomas Columby... Emory M. Harkins. John Richardson... Henry Bradford.... Peter Berg. Reported for duty. June 12, 1865 June 3, 1865 June 12, 1865 June 3, 1865 June 3,1865 June 3,1865 June 3,1865 June 3, 1865 June 3,1865 June 13,1865 June 3, 1865 June 13, 1865 June 12,1865 June 10,1865 June 12, 1865 Assigned. June 14, June 13, June 13, Juno 14, June 14, June 13, June 13, June 14, June 13, June 13, J une 13, June 14, June 12, June 10, June 14, 1865 1865 1865 1865 1865 1865 1865 1865 1865 1865. 1865 1865 1865 1865 1865 Amount. §275 00 100 00 200 00 330 00 250 00 225 00 300 00 250 00 100 00 200 00 225 00 165 00 150 00 475 00 350 00 Deserted. June 25, 1865 July 15, 1865 June 14,1865 July 10, 1865 July 15,1865 Aug. 15,1865 Aug. 10, 1865 July 15,1865 July 15,1865 June 14,1865 July 15, 1865 June 30,1865 June 14, 1865 June 23, 1865 June 23,1865

*Mr. Thomas J. Durant*for the claimant:

The petitioner is assignee of certain United States soldiers who had deposited certain sums of money with the proper offi*283cer of the Government at the time of enlistment. On the 27th of December, 1864, the War Department, by General Orders No. 305, directed that when a recruit arrived at a draft rendezvous, any money on his person exceeding $20 should be taken from him and placed in the hands of a paymaster. The amounts so taken were to be credited to the men. Such amounts were ordered to be deposited in a national bank. Such money was by the terms of the general order assignable by the soldier, and the paymaster was directed to pay the amount according to the order. The proof in the record is conclusive that each one of the soldiers named in the petition had credited on his checkbook the amount the petition claims.

These claims were presented to the proper accounting officer of the United States by the assignee, the petitioner in this case, and payment thereof refused. The ground of refusal of payment was the desertion of the soldiers.

The petitioner’s right to buy and the soldier’s right to sell at the time of the assignment are both undisputed; no subsequent act of the assignor nor of the Government could lawfully divest the property of the petitioner. These are elementary principles which need only to be stated; the petitioner occupies the position of an innocent purchaser.

The penalties against desertion denounced by the twenty-ñrst section of the *Act March*31, 1865, (13 Stat. L., p. 490, § 13,) are the loss of citizenship and of the right of holding office ; forfeiture of goods is not mentioned, and could not be inflicted constitutionally for an act previously committed and not amenable to such punishment at the time when committed. It is not clear, then, that this money could be withheld from the deserter himself if, not having assigned, he should re-appear to claim it.

*Mr. Assistant Attorney-General McMichael*for the defendants.

LokinCt, J.,

delivered the opinion of the court:

It was contended in behalf of the United States that this action was barred by the *Act February*26,1853, (10 Stat. L., p. 170,) which avoids all assignments of claims against the United States made before a warrant for their payment has been issued at the Treasury Department; and that to take the case out of the statute it must be shown that the assignments were made *284according to the general order of the War Department No. 305.

As early as 1835, in the case of *The United States*v. Robeson, (9 Peters, 319,) the Supreme Court said: “ There is no law of Congress authorizing the assignment of claims against the United States; and it is presumed, if such assignment is sanctioned by the Treasury Department, it is only viewed as an authority to receive the money, and not as vesting in the assignee any legal right.”

This decision was but a corollary of the common-law principle that a chose in action was, from its nature, unassignable. The courts of common law, under the compulsion of the growing-exigencies of trade and commerce, had derogated from this principle so far as to protect the interest of assignees of money demands by authorizing them to sue for them in the names of the assignors, and thus vested in such assignees a legal'right to the demand as against the assignor and against his debtor after notice. But the practice of courts could not control their governments nor trench upon their rights without their authority, and, therefore, in the absence of any act of Congress for the purpose, claims against the Uuited States remained unassignable in their nature; and, moreover, the United States were not suable at all, and the only reliance of an assignee of a claim against the United States was on such consideration as he might receive from the Secretary of the Treasury, and his only power was to treat the assignee as the agent of the assignor, receiving the money for him and in his right.

Subsequently the act of 1846 (9 Stat. L., p. 41) was passed. This was confined to claims against the United States allowed and ordered to be paid by a resolution or act of Congress; and it prohibited payment of such claims to any but the claimants, their executors or administrators, unless upon a warrant of attorney executed by the claimant, or his executor or administrator, duly attested and acknowledged, and made after the enactment of the resolution or act of 'Congress.

And under this act the payment of the claims specified in it was confined to the original claimants or their legal representatives, or their attorneys who, in name and in fact, represented the original claimants or their legal representatives, and received the money as for them, and without recognition of any rights of their own as assignees.

*285But tbe stringent provisions of this statute proved insufficient for the protection of the United States, and then the act of 1853 was i>assed, declaring all assignments of claims against the United States absolutely void, except of claims which had been examined at the Treasury and adjusted there and a warrant issued for their payment. This act legalized the assignment of warrants for payment and nothing more, and such assignments are the only assignments which now are or since tbe act have been cognizable at the Treasury Department.

And the reason of the acts above specified was, that when they were enacted there was no tribunal before which the validity of assigned debts and of assignments could be examined and judicially determined, for the Treasury Department was not intended for or adapted to litigation. But this reason ceased when this court was established, and, therefore, in the acts establishing and reconstructing this court, the litigation of assigned claims was expressly provided for. And thus claims against the United States were removed from the fetters of the common law and made assignable in their nature by acts of Congress, and this assignee stands here, not as representing the assignor, or on a mere equity, but in his own legal right, and in his own name claiming his property.

But it was contended by the United States that the petitioner can claim only under and according to the general order of the War Department No. 305, under which the deposits were made and Avhich binds them as a contract.

And the sixth article of that order provides as follows: “ When a soldier desires to assign his money or any part of it to his family or other person, he shall give an order in duplicate on the paymaster for the amount, and the paymaster shall then pay the amount according to the order. The order shall be witnessed and certified as genuine by the commanding officer of the rendezvous, or the officer specially charged with that duty. The paymaster will issue his check on his depository, payable to the order of the assignee, and himself deliver or mail it direct to the assignee, in no case permitting it to fall into the hands of the soldier.”

It was not shown or claimed that the assignments under which the petitioner claims were made according to these provisions of the sixth article. And there was no need that they should be, for they are not within its purpose or operation.

*286The reasons of order No. 305, requiring recruits at their draft rendezvous to deliver up all their money over $20, were the protection of their funds and the prevention of their misuse in dissipation at the rendezvous, where many men would be gathered together and the means of preventing disorder might be insufficient.

And the sixth article refers only to assignments made at the draft rendezvous. And this is clear, because the article requires that the assignment shall be witnessed and certified as genuine by the commanding officer of the rendezvous or the officer specially charged with that duty. And the sixth article refers to the reason above stated for requiring the deposit to be made at the draft rendezvous by its provision that the paymaster shall himself see that the check, he draws passes from him to the assignee, and is in no case permitted to fall into the hands of the soldier.

And it is equally clear that the assignments on which the petitioner claims were made and legally made within the provisions of the seventh article of the general order. That provides as follows: “After arriving at his regiment the soldier may claim payment of the amount of his deposit from the paymaster who pays his regiment, on the first regular payment being made him.” If it is his right then to claim and get it, it is because it is his property and then subject to his disposal and he may give it away or assign it. And the evidence shows that each soldier did assign his deposit to the petitioner for a vain-, able consideration, and it then became therefrom the property of the petitioner, beyond the control of the soldier and not to be affected by any subsequent act of his.

It was claimed for the United States in the argument that each soldier’s deposit was forfeited to the United States by his desertion, and the eighth article of the General Order No. 305 was relied upon. That article is as follows :

> “ In case of death or discharge the money will be drawn from the Treasury in the same mode as other dues from the United States. In case of men charged with desertion, satisfactory proof must be produced of a removal of the charge, or that the soldier has served out his time and been properly discharged.”

But a soldier can be convicted of desertion only by the judgment of a court-martial, and the eighth article specifies and contemplates no such thing, but only “ *a*charge” of desertion. *287And it cannot be inferred that a soldier is to forfeit his deposit upon a mere charge of desertion. And the article would appear to be merely directory to the Department for its action. And there is no law of Congress forfeiting a soldier’s deposit for his desertion, or authorizing the Department to do so. On the other hand, article 935, in the Army Eegulations of 1863, which provides for deposits of pay, expressly declares, in section 8, as follows: *“*The money deposited by any soldier shall not be liable to forfeiture by sentence of court-martial.” And if the desertion of a soldier, adjudged by a court-martial, is not to forfeit his deposits of his pay, *a fortiori*a charge of desertion is not to forfeit his deposits of his property.

It was also contended for the United States that they were not liable to the petitioners unless they had agreed to hold for them the moneys deposited and assigned by the soldiers. And the case of the *Bank of the Republic*v. *Millard,*(10 Wall., 155,) and other cases cited, were relied upon. But, as was answered at the bar, those cases only decided that the holder of a bank-check, drawn by a customer of the bank, could not recover on it against the bank unless it had accepted the check, because the relation of a bank and its customer is not that of a depositor and depositary, but only that of debtor and creditor; while here the relation of the United States and the soldiers is that of depositary and depositors. Besides this, by the statutes of 1855 and 1863, authorizing suits here by assignees, the United States do agree with them to pay to them the claims assigned to them, on proof that such claims are due to them.

For the reasons stated we think that the petitioner is entitled to judgment.

It should be stated that in the return of the War Department it is stated that Harry Bradford deserted June 3, 1865, while his assignment to the petitioner is dated June 10,1865. But the assignment is attested by M. B. Campbell, who signs as second lieutenant of Bradford’s regiment, and a witness deposes that the officer and soldier signed their names in his presence on the 10th of June, 1865. And A. B. Nettleton, colonel of Bradford’s regiment, certifies on Bradford’s check-book that he reported for duty June 10. And on the evidence we think the conclusion is that the figure in ‘‘June 3” is a mistake for June 23.

*288Drake, Oh. J.,

concurring:

I concur in the result reached, but not in all the views advanced in the opiuion of the court.

The construction put upon the sixth clause of General Order No. 305, confining its operation to assignments made by the soldier at the place of rendezvous, seems to me to be too restricted. In my opinion, that clause applies to all assignments of money deposited in the cases contemplated by that order; and it is through that clause that I deduce the right of this claimant to sue for the moneys claimed in this case.