of the award to be made should be considered as outstanding liabilities to the full amount of the balance of $3,046.28 remaining from the appropriation of March 2, 1895, for the Dalecarlia Receiving Reservoir, and (2) whether, in view of the wording of the paragraph previously quoted of the act (Public No. 109) approved March 2, 1895, I am authorized to act in place of Col. George H. Elliot, Corps of Engineers, retired, in the disbursement of the balance of this appropriation."

Replying to the first question, I have to advise you that where an appropriation is made for a specific improvement in an annual appropriation act so as to be limited to a particular fiscal year, and specifically authorizes the acquisition of land by condemnation, and proceedings to that end are instituted during the fiscal year for which the appropriation is made, all the necessary expenses of such proceedings, including the amount of the final judgment, are legal obligations of the Government and properly payable from this appropriation, notwithstanding the fact that the proceedings are not terminated during the fiscal year for which the appropriation is made. In such case the expenses of the suit and the final judgment are incidental to the purposes for which the appropriation is made, and, if not growing out of the fulfillment of contracts properly made within the year for which the appropriation is made, are still expenses properly incurred during that year within the meaning of section 3690, Revised Statutes. Accordingly I answer the first question propounded affirmatively.

While the second question is not free from doubt, I am of the opinion that the language of the appropriation act authorizing" said work to be done and completed under the supervision of Col. George H. Elliot, Corps of Engineers, notwithstanding his retirement," is merely directory and not mandatory; in other words, that this appropriation is available for this purpose although Colonel Elliot might not have been put in charge of the work by his superior officers. Accordingly I have to advise you that the engineer in charge of this work may properly disburse the balance of this appropriation in concluding the proceedings necessary in connection with this reservoir.

Respectfully, yours,

The CHIEF OF ENGINEERS,

EDW. A. BOWERS,
Assistant Comptroller.

United States Army.

IN RE APPEAL OF SAMUEL PULESTON, UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF FLORIDA.

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A defendant who gives bond for his appearance for a hearing before a co missioner, with condition that he shall not depart without leave, does not, when he appears at the hearing and is dismissed by the commissioner, come again into the custody of the marshal so as to entitle that officer to a fee for discharging him.

A defendant who gives bond for his appearance for a hearing before a commissioner does come again into the custody of the marshal upon being held for court, and that officer is entitled to the fee for discharging him upon bail.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

May 19, 1896.

Mr. Samuel Puleston, United States marshal for the northern ́district of Florida, appeals from the settlement of his account by the Auditor for the State and other Departments. Among the disallowances made by the Auditor were fees for the final discharge of defendants in cases before United States commissioners where said defendants had been already released on temporary bail by the commissioner. The cases may be grouped into two distinct classes: First, where after examination the defendant was not held to court, but was dismissed; second, where after examination the defendant was held and admitted to bail by the commissioner to appear before the court. By section 1014, Revised Statutes, it is provided:

to take bail

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"For any crime or offense against the United States the offender may by any commissioner of a circuit court agreeably to the usual mode of process against offenders in such State be arrested and imprisoned or bailed as the case may be, for trial before such court of the United States as by law has cognizance of the offense."

It is proper therefore to look at the law of the State in which the services in such case are rendered to determine what is necessary and proper to be done and inferentially for what serv ices the commissioner is entitled to payment (United States v. Ewing, 140 U. S., 142-144). The same may be said where the fees of another officer besides the commissioner-as, for instance, the marshal-are under consideration, for in such case the marshal's fees must depend upon the legal effect of the commissioner's actions.

The Revised Statutes of Florida, 1892, contain the following provisions:

"2869. All judicial officers of this State shall be conservators of the peace and committing magistrates. The method of proceeding before all committing magistrates shall be that prescribed for justices of the peace, as nearly as may be. "2951. Time of trial.-Upon the return of the warrant with the accused, the justice shall proceed to hear, try, and determine the cause forthwith, or shall adjourn the same to some day of the next term of his court.

"2952. Bail of commitment.-From the time of the return of the warrant until the time of the trial, the accused may give bail with one or more sufficient sureties, to be approved by the justice, for his appearance at the time of the trial, in such sum as shall be named by the justice, not exceeding one hundred dollars; or in the event of failure to furnish such security, he may be committed to the county jail for safe-keeping, by warrant of said justice, or left in custody of the sheriff and constable."

By section 2877 it is provided that a committing magistrate, after the examination of a person whom he determines shall be held to bail, "shall take the bond of the accused, with one or more sureties, for his appearance at the next term of the proper court."

The form prescribed for a recognizance for an appearance at court is as follows:

"The condition of this obligation is such that if the said shall appear at the next term of the court to be held in and for said county, to answer to a charge of (describe the offense), and shall not depart the same without leave, then this obligation to be void, else to remain in full force and virtue."

As the words, "for his appearance at the time of the trial,” in section 2952, are substantially the same as those found in section 2877, "for his appearance at the next term of the proper court," it would seem conclusively to follow that a justice of the peace in taking a bond for the appearance of an accused before himself at a future day, either for trial or examination, as a committing magistrate, is authorized to take a bond containing the clause in the form prescribed that the accused "shall not depart the same without leave."

While there is some conflict as to the effect of a bond which requires the defendant to appear at a particular time and answer a criminal charge, some jurisdictions holding that such a bond is satisfied by the appearance of the accused at the time named and does not extend to the period of the trial or to

subsequent adjournments (Howie v. The State, 1 Ala., 113; Colquitt, Governor, v. Smith, 65 Ga., 341), others holding that such a bond does extend until the termination of the trial or examination (People v. Millhan, 100 N. Y., 273), the authorities are substantially unanimous that where the bond contains the clause that the accused "shall not depart thence without leave of court," or words of similar purport, the accused continues in the custody of his bondsmen, although several adjournments have taken place during the same term or to subsequent terms, until the final termination of the trial (Gallagher v. People, 88 Ill., 335; 91 Ill., 590; State v. Brown, 16 Iowa, 314; State v. Ryan, 23 Iowa, 406; Gentry v. The State, 22 Ark., 544; Moore v. The State, 28 Ark., 482; State v. Smith, 66 N. C., 620; Lee v. The State, 51 Miss., 665; People v. McCoy, 39 Barb., 73). While the forms of the bonds given in the different cases are not furnished, it is to be presumed that the commissioner would follow the form prescribed in the statutes, particularly as he would be precluded from receiving compensation for drawing an extra bond when by law he might have drawn one bond in such form as to require the appearance of the accused until the termination of the examination (1 Comp. Dec., 536).

Where, therefore, a defendant having been admitted to bail for his appearance before the commissioner for examination at a subsequent date is not held over to court, but is dismissed by the commissioner, he does not come into the custody of the marshal and is therefore not discharged by him. In such cases the marshal is not entitled to a fee for a discharge, and the action of the Auditor is affirmed.

2. In whatever form the bond may have been drawn it would seem that when the commissioner after the examination announced his decision that the defendant should be bound over to court, the temporary bond would have fulfilled its functions, and the sureties would be released thereon. (State v. Bobb, 39 Mo. App., 543.) In such cases the defendant would necessarily come into the custody of the marshal, and when he executed another bond for his appearance before the court and was released thereon he would, in fact, be discharged by the marshal, and the fee for such discharge would therefore be allowable. As to these cases the action of the Auditor in disallowing the fee for a final discharge is overruled. R. B. BOWLER, Comptroller.

IN RE CLAIM OF FRANCIS SCALA FOR ADDITIONAL PAY FOR REENLISTMENT WHILE LEADER OF THE MARINE BAND.

1. The act of June 20, 1864, fixing the pay of leaders of Army bands at $75 per month, placed them upon the same footing as other enlisted men of the Army as to allowances and bounty, and brought them within the provisions of the act of August 4, 1854, giving additional pay to soldiers reenlisting in the Army.

2. This claimant, an enlisted man of the Marine Corps, was leader of the Marine Band from August 4, 1864, to December 3, 1871, when he was discharged, having served continuously since August 11, 1842. Held, That the position of leader of the Marine Band being assimilated to the grade of band leaders in the Army (sec. 1612, Rev. Stat.), the claimant comes within the provisions of the acts of August 4, 1854, and June 20, 1854, and while such band leader he was entitled to the same pay and bounty for reenlisting, including additional pay for reenlistment, as were leaders of bands in the infantry of the Army.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

May 19, 1896. Francis Scala, through his attorney Lemuel Fugitt, of Washington, D. C., appeals from the decision of the Auditor for the Navy Department of December 9, 1895, disallowing his claim for additional pay for reenlistment while leader of the Marine Band from August 4, 1864, to December 13, 1871, date of final discharge, amounting to $381.50, less a credit of $54.60.

The claimant enlisted in the Marine Corps and was rated a musician August 11, 1842, and continued to reenlist thereafter upon the expiration of each preceding enlistment, so as to make his service continuous, until finally discharged December 13, 1871. His claim is for additional pay for reenlistment under the act of August 4, 1854 (10 Stat., 575), while leader of the band, from August 4, 1864, to August 4, 1869, as for a fourth period of five years, and from the latter date until his final discharge as for a fifth period of five years, less the credit above mentioned, which was paid him as for a second period from September 5, 1869, to discharge.

The Auditor disallowed the claim for the following reasons: "The late Second Comptroller Butler decided in the case of John Philip Sousa (Par. 977, vol. 3, Second Comptroller's Digest) that as leader of the Marine Band he was not entitled to additional pay for reenlistment, and in Keppler's Case (27 C.