(18 Stat., 333), the accounting officers have no jurisdiction to consider any item not approved by the court. Therefore, whether the action of the court was right or wrong in the disallowance of these items, the accounting officers are without power to consider the explanations made by the commissioner. The action of the Auditor in disallowing the same is therefore affirmed. 2. The Auditor also made the following disallowance: "All charges incident to such continuances for bonds and mittimuses, disallowed." If the continuances were unnecessary and had not, in fact, been made, the services consequent upon such continuances would not have been rendered. It would seem, therefore, that the charges for these services are not allowable unless the per diems for the continuances are also allowable. As the necessity for the continuances is a question of fact which the court has, in the approval of the commissioner's account, found against the commissioner, the charges for the services incident to such continuances, although approved by the court, should not be allowed by the accounting officers. The action of the Auditor is therefore affirmed. Comptroller. IN RE ACCOUNT OF A. D. BROOKS, CLERK UNITED DISTRICT COURT FOR THE EASTERN STATES DISTRICT OF TEXAS. Under section 878, Revised Statutes, the clerk's fee for the filing of an indigent defendant's affidavit is no part of the "costs incurred by the process," and is not a proper charge against the Government. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, October 28, 1895. In the settlement of the account of Mr. A. D. Brooks, clerk of the district court for the eastern district of Texas, for the quarter ending June 30, 1894, the following disallowance was made: "Charge for filing defendant's præcipe for process disallowed. Government's liability commences with the issue of the subpoena. 20 cents." Mr. Brooks, in his explanation to suspended and disallowed items in said account, makes the following statement as to this disallowance: "The affidavit to indigence, setting forth what he expects to prove by the witnesses, etc., as specified in section 878, Revised Statutes, and its filing by the clerk is surely part of the 'costs incurred' by the process (subpoena), and should be paid in the same manner that similar costs (filing præcipe of United States attorney) are paid in case of witnesses subpoenaed in behalf of the United States." Section 878, Revised Statutes, provides: "Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are witnesses whose evidence is material to his defense; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the court in term, or any judge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and the fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States." From a reading of the language above quoted, it is clear that "the costs incurred by the process" first arise when, after the person indicted has filed a proper affidavit, the judge orders the witnesses to be subpoenaed. Charges for drawing affidavits and for jurats and seals thereto and for filing the same have been uniformly disallowed by the accounting officers for the reasons above stated. The affidavit no doubt has to be filed in all cases, whether the judge orders a witness to be subpoenaed thereunder or not. It can not be contended that the charge for filing the affidavit should be paid by the United States as part of the "costs incurred by the process" in a case where no witness was ordered to be subpoenaed. The expense of filing the affidavit becomes no more "costs incurred by the process" because an order directing the witnesses to be subpoenaed has been made by the judge. The disallowance was properly made, and will, therefore, stand. R. B. BOWLER, 11268-VOL 2- -15 IN RE APPEAL OF J. B. COGHLAN, UNITED STATES NAVY, INSPECTOR OF THE EIGHTH LIGHT-HOUSE DISTRICT. A disbursing officer of the Government is not authorized by law in paying from the salary due a deceased employee the claims of creditors against his estate. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, J. B. Coghlan, commander U. S. N., inspector of the Eighth light-house district, appeals from the Auditor's settlement of his account under the appropriation, "Salaries of keepers of light-houses, 1894," for the period ending June 30, 1894. The Auditor made the following disallowance: "The amounts paid Dan Lynch and L. A. Guidry, as charged in vouchers Nos. 48 and 49, disallowed. There is no authority for the said Dan Lynch and L. A. Guidry to sign for or receive the salary due Harry Anderson or any portion of it." The voucher in favor of Dan Lynch is made up of the following items: It appears that Harry Anderson, assistant keeper of the Southwest Reef Light Station, Louisiana, died on February 12, 1894. There was due to him as salary up to that date the sum of $53.75. Under authority of the Light-House Board the inspector paid therefrom burial expenses amounting to $34, and the bills of Lynch and Guidry amounting to $15.60. It appears that Anderson was unmarried, and although diligent inquiry was made no information could be obtained as to his heirs. No administration was had upon his estate. The action of the Auditor in disallowing the payments made to Lynch and Guidry must be sustained. There was no authority of law for the use of the money due the deceased in the payment of these bills. There is a long established practice in the Treasury Department in regard to the disposition of salary due to a deceased officer or employee when the amount is less than $100 and no other property is left. In such cases it has been the practice upon the presentation of the proof for the action of the Comptroller of the Treasury not to require administration upon the estate, but the amount due is paid to the widow or other person or persons who would be entitled in the event that letters of administration were taken out. Funeral expenses being a first claim against the estate of a deceased person, the Government is fully protected in paying them from the assets of the deceased. Until evidence is furnished that the funeral expenses have been paid, no part of the money due the deceased is paid to the widow or other heirs. Neither the law nor any practice of the Department would warrant the Government in distributing the personal estate of a deceased employee and paying the claims of general creditors, and particularly claims of the character disallowed by the Auditor in the present case. Such claimants have always been left to their remedy at law by taking out letters of administration and proving their claims before the administrator to whom the Government would pay the amount due the estate. R. B. BOWLER, IN RE APPEAL OF WILLIAM F. BURKE, LATE PRIVATE UNITED STATES MARINE CORPS, FROM DISALLOWANCE OF RETAINED PAY. An enlisted man of the Marine Corps who deserts thereby forfeits his retained pay (sections 1281 and 1282, Rev. Stat.), for he has not served "honestly and faithfully," notwithstanding he surrenders himself and makes good the time lost by desertion and is given an honorable discharge. TREASURY DEPARTMENT, OFFICE OF COMPTROLLER OF THE TREASURY, November 9, 1895. The claimant appeals from the decision of the Auditor disallowing his claim for retained pay. The disallowance was made for the following reasons: "The facts, as disclosed in the accompanying papers, are that Private Burke deserted April 8, 1893; surrendered December 18; made good the time lost by desertion; and was honorably discharged May 27, 1895. He did not render honest and faithful service, and his claim is disallowed under the decision of the Supreme Court in the Kingsley Case" (138 U. S., 87). It appears from the statement of the commandant of the Marine Corps that the claimant reenlisted in this service for the third time upon September 13, 1889, and that he deserted on the 8th of April, 1893, voluntarily returning and surrendering himself December 18, 1893. Thereupon he was restored to duty without a trial in view of his previous good record in the Marme Corps, which covered a period of twenty years' service. Upon the expiration of this last term of service, including the additional time necessary to make good his absence during desertion, he was given an honorable discharge May 28, 1895, and the mark of desertion was removed from his record upon the theory that he had served honestly and faithfully by having made good the time lost during his desertion. In other words, the Marine Corps treated the mark of desertion upon their records as an erroneous one, and therefore removed it. Nevertheless his retained pay was withheld by the paymaster of the Marine Corps, and he was advised by the colonel commandant to submit his claim for the same to the accounting officers, which he accordingly has done. The retained pay claimed by Burke is that arising under the act of May 5, 1872, sections 1281 and 1282 of the Revised Statutes. The purpose of this law and of section 1 of the act of June 16, 1890 (26 Stat., 157), is to prevent desertion by retaining some portion of the pay of enlisted men until the date of discharge, and to insure their good behavior by declaring that the retained pay shall be forfeited unless the service has been honest and faithful until the date of discharge. Paragraph 1503 of the Army Regulations, carrying these laws into effect, as amended by General Orders, No. 56, of July 2, 1891, is as follows: "1503. The retained pay provided for in sections 1281 and 1282, Revised Statutes, and in section 1 of the act approved June 16, 1890, is forfeited for the following causes: 1st. Desertion during the period of enlistment. 2d. etc." This regulation is as applicable to the Marine Corps as to the Army, by reason of section 1612, Revised Statutes. (19 Opin. A. G., 616.) This law and regulation appear to be conclusive as to Burke's |