
    ROBERT CARRICK v. THE UNITED STATES.
    [No. 15903.
    Decided March 11, 1889.]
    
      On the Proofs.
    
    An officer in a cavalry regiment is sent before a retiring hoard, under the Acfr 1870, for the reduction of the Army; he is heard and his evidence considered. The hoard finds him unfit for service and recommends that he he mustered out. The President so orders. The officer receives the year’s pay given by the act, hut now insists that the proceedings of the hoard were void, and seeks to recover the pay of the office.
    
      I. A retiring board, under the Aot 15th July, 1870 (16 Stat. L., § 11, p. 318), was only an advisory hoard and not hound hy statutes or regulations governing courts-martial.
    
      If. When an officer appears before a' military hoard and makes no objection to its proceedings or rulings he waives irregularities.
    III. When an officer ordered to he mustered out, under the Act 1870, made no objection, accepted the result, and took the benefit of the year’spay in advance, given by the statute,, and for seventeen years never offered to perform any duty, his acts ai e tantamount to a resignation and estop him from demanding either the pay or the office.
    IV. If an officer were illegally mustered out under the Aot 1870, and his office filled by Presidential appointment, with the advice and consent of the Senate, it is in legal effect a removal.
    
      The Reporters’ statement of the case:
    The following are the facts of this case as found by the court:
    I. The claimant was appointed and commissioned second lieutenant in the Eighth United States Cavalry, March 7,1857, and was promoted to first lieutenant October 9, 1867.
    “War Department,
    “ Adjutant-G-eneral’s Oeeice,
    “ Washington, October 5, 1870.
    “ I. Under section 11 of the act of Congress approved July 15, 1870, a board to examine officers ‘unfit for the proper discharge of their duties for any cause except injuries incurred or disease contracted in the line of their duty,’ will convene in this city October 17th, 1870, or,as soon thereafter as practicable.
    
      “Detail for the board. — Major-General W. S. Hancock, Brigadier-General Alfred H. Terry, Colonel C. H. Smith, 19th Infantry; Colonel Edward Hatch, 9th Cavalry; Colonel E. S. Mackenzie, 24th Infantry. Captain James McMillan, 11th Infantry, is detailed as recorder of the board.
    “ The board will be governed by the requirements of the act of Congress under which it is convened, and will report in each case the cause, degree, nature, and duration of the disqualification of the officer.
    “The members of the board will in every case be sworn to, an honest and impartial discharge of their duties. * * *
    “ By order of the Secretary of War.
    “E. D. Townsend,
    
      “Adjutant- General.”
    
    By special order of October 12, 1§70, Col. T. H. Euger was detailed as a member of the board in place of Col. Edward, Hatch.
    
      III. The following is the record of proceedings of said board, omitting only some parts not deemed material:
    “Rooms Examining Board, No. 30 Winder’s Building, Washington, Deo. 19, 1870 (Monday), 10 a. m.
    “ The board met pursuant to adjournment. Present: Major-General W. S. Hancock, Brigadier-General A. H. Terry; Colonel Thomas H. Eager, 18th Infantry; Colonel O. H. Smith, 19th Infantry; Colonel R. S. Mackenzie, 24th Infantry; Captain James McMillan, 11th Infantry, recorder of the board.
    “ The board then proceeded to consider the cáse of 1st Lt. Rob’t Oarrick, 8th Cav., who was called before the board and heard read the foregoing orders, and also the following order:
    [Special Orders No. 292.]
    ' “War Department, “Adjutant-General’s Oeeioe,
    “ Washington, November 1, 1870.
    * * * # , , # #
    “ 6. Allegations of unfitness against * • 1st Lieutenant Robert Oarrick, 8th Cavalry, * having been sent to the board convened under section 11 of the act of Congress approved July 15, 1870, their department commanders will direct them to appear without delay before the board in this city, or forward a waiver if they desire not to appear. * * *
    “ By order of the Secretary of War.
    “E. D. Townsend,
    
      “Adjutant- General.
    
    “ Wm.' D. Whipple, . <
    
      “Assistant Adjutant-General.
    
    “ Lt. Oarrick was asked if he had any objection to any member named in the foregoing orders. To this he replied in the negative. The members of the board were then severally duly sworn by the recorder, and the recorder was duly sworn by the president of the board, all of which oaths were administered in the presence of Lt. Oarrick.
    “ R. R. Hitt, stenographer, was duly sworn to faithfully record the proceedings in the case.
    “The recorder read aloud the allegations against Lt. Oarrick, as follows:
    “Headquarters 8th U. S. Cavalry,
    “ Fort Union, New Mexico, Sept. 13, 1870.
    “ Capt. W. G. Mitchell, Aot'g AssH Adft-GenH:
    
    “ Sir : In obedience to instructions contained in your letter dated July 30,1870, I have the honor to report as follows: “1st. First Lieutenant Robert Oarrick, F Troop, 8th Cavalry, is disqualified for the proper and efficient discharge of the duties pertaining to his position, by, reason of intemperate habits, an unreasonably overbearing disposition toward enlisted men, an inability to control a violent and irascible temper, and to comply with paragraph 3, Revised Army Regulations. These disqualifications have existed since appointment.
    “ The documentary evidence in reference to habits of intemperance are the proceedings of a general court-martial, which convened at Gamp Toll G-ate, Arizona, on Wednesday, November 3d, 1869, by virtue of Special Orders No. 179, current series, Headquarters Dept, of California, now on file in the office of the Judge-Advocate-General, Washington, D. 0., and charges and specifications preferred against him by oj?der of General • <rd, commanding department, a copy of which will be forwarded immediately ou receipt.
    “ Witnesses to other qualifications, Major A. J. Alexander and Captain Charles Hobart, 8th Cavalry. * * *
    “ In forwarding the foregoing report justice to these officers requires me to state that * Lieuts. Garrick and * have been honorably mentioned in orders, the former in General Orders No. 58, Sept. 30,1869, * Headquarters Dept, of California. * *
    
    
      u Very resp’y, your ob’t serv’t,
    “ J. Irvin Gregg-,
    “ Colonel 8th Govthj, Gom’d’g.”
    
    “ Camp Toll Gate, A. T., March 21st, 1870.
    “ General : I have the honor to forward the inclosed charges against Lieut. Garrick, 8th Cavalry, to you at Camp Whipple, believing you will arrive there before the cavalry leave, in order that you may be able to act on the same, and respectfully invite your attention to the following:
    
      u The court convened at this post consists of but five members, the minimum allowed by law, two of whom are principal witnesses for the prosecution and one an officer of the accused’s regiment, junior to him in rank, and therefore good grounds existed for the challenging of the above members; but Lieut. Carrick, feeling guiltless of the charges preferred against him, ■waived the right of challenge and desired to be brought to trial, having been in arrest and awaiting trial for three months. But an objection arose to the trial of the case, viz: Major Nelson and Bvt. Col. Young are both members of the court and principal witnesses for the prosecution, and it being laid down as a general rule by military writers on courts-martial that witnesses should be excluded during the examination of a witness, it was impossible to observe this rule and proceed with the trial, and the charges being serious I did not consider it advisable or just to the officer to proceed with the trial when a doubt of tbe legality existed, and my letter of instructions only authorized me to detail members in cases of enlisted men.
    “ It may not be improper for me to state that I had prepared the case for trial before the above objection presented itself to my mind, and in justice to Lieut. Carrick should say that the statements made to me by the witnesses named do not sustain the specifications of the first charge, and in regard to the 2d charge and specifications, I have examined many witnesses besides those namejl, and am unable to find testimony to substantiate them.
    “ It appears that the detachment under his command, with a very few exceptions, were under the influence of liquor when they left Camp Mojave (the detachment consisted of 18), and very insubordinate, and that an organized plan for desertion was formed previous to the detachment leaving Toll Cate as escort for Col. Nelson, and that Lieut. Carrick was in no way responsible for said desertions; that he used harsh language and punished two of the party by tying them to the wagon for 30 minutes, he does not deny, but it appears as if the circumstances warranted the same as far as the punishment goes, and in times of excitement a person will use language which at other times he would regret; Kenny was a very violent man when under the influence of liquor, and was a ring-leader and endeavored to induce other men to join him and offer violence to the lieut.
    
      “ If the statements made to me should be made under oath before a court (and I can find no reason why this would not be done, for I can detect no signs of intimidation or tampering with the witnesses or men being resorted to), I do not think it possible for a single specification being sustained.
    “ I am, very resp’y, your ob’t serv’t,
    “ E. W. Stone,
    “ Bvt. Lt. Gol. U. 8. A., J. A. G. O. M.
    
    “Major-Gen’l E. O. O. Ore, U. S. A.,
    “ Gomd’g Befit of Gal.”
    “ Charges and specifications.
    
    “ Charge 1st. — Drunkenness on duty.
    
      u Specification 1st. In this, that the said 1st Lieut. Robert Garrick, 8th Cavalry, whilst in command of the escort of Bvt. Lt. Col. J. H. Nelson, paymaster IT. S. A., did become so drunk as to be incapable of performing his duty.
    
      u This on the road between Camp Toll Gate, A. T., and Camp Willow Grove, A. T., on or about the 18th day of July, 1869.
    “ Specification 2d. In this, that the said 1st Lieut. Robert Carrick, 8th Cavalry, while in command of an escort belonging to Camp Toll-Gate, A. T., became so drunk as to be unable to perform his duties.
    
      “ This on the road between Camp Mojave, A. T., and Union Pass, A. T., on or about the 23d of July, 1869.
    “ Chabge 2d. — Conduct to the prejudice of good order and military discipline.
    “ Specification 1st. In this, that the said 1st Lieut. Robert Carrick, 8th Oav., did get drunk and behave in a disgraceful manner in the presence of enlisted men of his command.
    “This at or near Hardyville, A. T., on or about the 23rd day of July, 1S69.
    “ Specification 2d. In this, that the said 1st Lieut. Robert Carrick, 8th Cavalry, did unnecessarily abuse the enlisted men of his command, saying, “ You are a damned son of a bitch, or words to that effect.
    “This at or near Camp Alexandria, A. T., on or about the 23rd day of July, 1869.
    “ Specification 3rd. In this, that the said 1st Lieut. Robert Carrick, 8th Cavalry, did call Private Kenny, E Troop, 8th Cavalry, a “ God damned son of a bitch,” and did tie him . (Kenny) behind a wagon, and did otherwise abuse said Private Kenny, E Troop, 8th Cavalry, thereby causing his desertion from the United States service.
    “ This at or near Camp Alexandria, A. T., on or about the 23rd day of July, 1869.
    “ Specification Ath. In this, that the said 1st Lieut. Robert Carrick, 8th Cavalry, did draw his pistol and challenge any man in the escort to fight him.
    “ This at or near Camp Alexandria, A. T., on or about the 23rd day of July, 1869.
    . “J. D. Stevenson,
    “ 1st Lieut. 8th Cavalry, Post Adjutant.”
    “ The recorder handed to Lt. Carrick a copy of the rules of procedure, as follows:
    “ The board has adopted the following as rules for the government of its proceedings:
    “ I. Any officer who may be brought before the board will be entitled to produce any testimony whatever which will tend to rebut the allegations against him, or to show that he is not unfit for the service, and will be permitted to lay before the board any letters or other papers, sworn to or not, which will have the same tendency. He will also be permitted to make any proper statement in his own behalf.
    “ II. At the request of any officer who is before the board, witnesses who may be within the District of Columbia will be summoned to appear in person and testify.
    “ III. The testimony of witnesses who are without the District of Columbia will be taken by depositions, unless, in exceptional cases, it shall appear to the board that justice can not be done without bringing such witnesses personally before it. But the board will in all cases bear the testimony of witnesses who may voluntarily come from without the District upon the request of an officer who may desire their testimony.
    “ IV. When depositions are to be taken in behalf of an officer, interrogatories addressed to the witnesses whose testimony is desired must be filed with the recorder of the board, who will send them to the witnesses for answer under oath. Should the board find it necessary to propound any interrogatories to witnesses who are not within the District, a copy of them will be furnished the officer whose case is in question, in order that he may file cross-interrogatories should he see fit.
    “ V. The board will consider the statements contained in the reports submitted to it by the War Department as testimony bearing on the question of the fitness for service of the officers to whom they relate; but any officer will be entitled to file interrogatories in the nature of cross-interrogatories to be propounded to the officer or officers who have made reports or statements unfavorable to him, and the interrogatories so filed will be sent to the officers to whom they are addressed, to be answered under oath.
    “Jas. McMillan,
    “ Captain 11th Infantry, Recorder.
    
    “ The recorder read aloud the military history of Lt. Garrick, as follows :
    # # # # # * #
    
    “Lt. Garrick was informed that interrogatories to witnesses-had been sent out by the board. Copies of them would be submitted to him.
    “ In order to afford him an opportunity to prepare interrogatories the case was postponed until to-morrow at 10 a. m.”
    “ Rooms Examining Board, No. 30 Winder’s Building,
    “ Washington, Dee. 20, 1870 (Tuesday), 10 a. m.
    “The board met pursuant to adjournment. Present: Major-General W. S. Hancock; Brigadier-General A. H. Terry; Colonel Thomas H. Ruger, 18th Infantry; Colonel O. H. Smith,. 19th Infantry; Colonel R. S. Mackenzie, 24th Infantry. Captain James McMillan, 11th Infantry, recorder of the board.
    “ The board proceeded to consider the case of 1st Lt. R.. Carrick, 8th Cav., who was called before the board.
    “ Lt. Carrick submitted interrogatories to be propounded to witnesses.
    “The board appointed Dec. 22d (at 10 a. m.), 1870, for the-final hearing of this case.”
    
      “ Rooms Examining Board, No. 30 Winder’s Building,
    “ Washington, Deo. 22, 1870 (Thursday), 10 a. m..
    “The board met pursuant to adjournment. Present: Major-General W. S. Hancock; Brigadier-General A. H. Terry; Colonel Thomas H. Ruger, 18th Infantry; Colonel C. H. Smith, 19th Infantry; Colonel R. S. Mackenzie, 24th. Infantry. Captain James McMillan, 11th Infantry, recorder of the board.
    “ The board proceeded to consider the case of 1st Lt. Rob’t Carrick, 8th Oav., who was called before the board.
    “The recorder proceeded toread the evidence in this case, as follows:
    # # * * * * *
    “ The recorder stated that the depositions of ten witnesses m this case had not been received.
    “ The case was postponed until Dec. 26th, Monday.”
    “ Rooms Examining Board, No. 30 Winder’s Building,
    “ Washington, Deo. 2Gth, 1870, (Monday,) 10 a. m.
    The board met pursuant to adjournment. Present: Major-General W. S. Hancock; Brigadier-General A. H. Terry; Colonel Thomas H. Huger, 18th Infantry; Colonel C. H. Smith, 19th Infantry; Colonel R. S. Mackenzie, 24th Infantry. Captain James McMillan,. 11th Infantry, recorder of the board.
    “ The board then proceeded to consider the case of 1st. Lt-Robt. Carrick, 8th Oav., who was called before the board.
    “ The recorder submitted and read to the board the following depositions:
    # # # # # # #
    “ Lie’t Carrick submitted the following documents:
    * # # * # # #
    “ Lt. Carrick submitted the following statement in his deT fence, which was read by the recorder to the board:
    “ Captain James McMillan,
    
      “ 11th Infantry, Recorder of Board of Officers :
    
    “ Sir : Availing myself of the privilege granted by Par. I Of; the proceedings of the board, I have the honor to submit for their consideration the following statement having reference to the allegations against me: i
    1st. I feel quite confident that if sufficient time was afforded me that evidence can be produced ample to fully disprove the spirit of the allegations, but as the witnesses necessary for my.
    / defence are serving at remote posts on the frontier, and without the necessary time to collect their evidence, I can only sub-, mit such limited defence as could be made by the few witnesses-present.
    “ 2d. As to the charge of intemperate habits, I can assert;. that I have never drank to excess, and can adduce the testimony of the majority of officers with whom I have served that my official duties have never been neglected through habits of intemperance.
    “ 3d. In reply to the charge of “ an unreasonably overbearing disposition toward enlisted men,” I can only say, my education and habits as a soldier were formed after officers of the old Army, and their same careful regard for strict discipline has always been entertained by me.
    “ The regiment to which I am attached was largely made up of enlistments on the Pacific coast, and embraced a class of .men that naturally resisted all restraints. It was therefore necessary to exercise the strictest discipline, to attain which it sometimes became necessary to resort to severe punishment. I claim that a high state of discipline and efficiency was attained in the troop which I had the honor to command, the truth of which statement commanding officers of the post where I have served can verify.
    “ 4th. It seems unnecessary to say anything regarding the charges preferred against me at Camp Toll Gate and appended as a part of the documentary evidence.
    u After a careful examination of witnesses on the ground by the judge-advocate, he informs the department commander that the charges can not be substantiated, and the commanding general Department of California, in transmitting the charges to the commanding general Department of the Missouri, says that “ had the regiment remained under my command I would have directed that no further action be had on them.” Besides, I am prepared to prove that the charges were preferred through personal malice, and that the officer who preferred them adopted a system of persecution toward me by placing me in close arrest and other harsh and unusual measures.
    “ 5th. I submit the evidence of Major D. It. Clendenin and Captain Dudley Seward, 8th Cav., and Mr. Wheeler (the only officers with whom I have served that can be reached), showing my conduct and character. I also submit my discharge from the Army of the United States as an evidence of long and honorable service in the ranks; also copy of complimentary order for service against hostile Indians.
    “ In conclusion, I will say that I have made the Army my profession and served continuously for nearly eighteen years. I have endeavored to fully acquaint myself with the requirements of the service and obtain a knowledge of regulations and tactics to fit myself for the position of an officer. How well I have succeeded I am willing to leave with the officers with whom I have served.
    “ After so long a service in the Army, I am but illy prepared to engage in other pursuits, and trust that without positive proof of bad conduct or incompetency that my case will receive just and considerate action.
    Yery respectfully, your ob’d’t serv’t,
    “Robert Carrick,
    
      1st Lieut. 8th Cavalry.”
    “ The board was then closed, and after mature deliberation upon the evidence adduced, the board finds that the habitual treatment of and bearing' towards enlisted men under his command by First Lieut. Robert Carrick, Eighth Cavalry, are injurious to discipline, and render him unfit for the service; and the board does therefore recommend that he be mustered out of the service.
    1 “ Wine’d S. Hancock
    “ Major- General, President of the Board. *
    ■“ Jas. McMillan,
    “ Captain Eleventh Infantry, Recorder.”
    IY. The following indorsement was made on said record and proceedings: '
    “ To be mustered out.
    “ Dec. 27, ’70.”
    “Wm. W. Belknap, .
    “ Sec’y of War.
    
    The following order was promulgated :
    “War Department,
    “ Adjutant-General’s Oeeice,
    “ Washington, December 28, 1870.
    “ 1. By direction of the President, on the recommendation of the board convened under section 11 of the act approved July 15,1870, the following-named officers are hereby mustered •out of the service for cause other than injuries incurred or disease contracted in the line of their duty:’
    * # # # # # #
    “ 1st Lieutenant Robert Carrick, 8th Cavalry.
    # * # » # # #
    “ By order of the ¡Secretary of War.
    “E. D. Townsend,
    “ Adjutant-General.”
    
    Y. Subsequently claimant received pay, and signed and delivered the following receipt:
    
      The United States to First Lieut. Bobt. Garrick, Eighth CavaVry.
    
    For myself for over five years’ service from the 1st of December, 1870,
    to the 28th of December, 1870 (twenty-seven clays). |132
    For one year’s pay under act approved July 15, 1870, section 11 .... 1,760
    
      i
    
    * • *
    1,892
    * # # *
    
      
      “ I hereby certify that the foregoing account is accurate and just; that I have not been absent with or without leave during any part of the time charged for beyond the limits prescribed by existing laws; that I have not received pay, nor drawn rations, forage, or clothing in kind, or received money in lieu of any part thereof, for any part of the time therein charged; that I actually kept in service the horses and employed the private servants for which 1 charge, for the whole of the time charged, and that 1 did not during the term so charged, or any part thereof, keep or employ a soldier as a waiter or servant; that the annexed is an accurate description of my servant.
    
      “ That for the whole period charged for my staff appointment I actually and legally held the appointment and did duty in the department; that I was the actual and only commanding officer at the double-ration post charged for; and that no officer, within my knowledge, has a right or claim, or does claim, for said services for any part of the period charged; that for the whole time brevet pay is claimed I had the command stated; that I was actually in the command of a company for .the whole time additional pay is charged; that I have not been in the performance of any staff duty for which I claim or have received extra compensation during the time an additional ration is charged for.
    “ That I have been in the United States Army as a commissioned officer for the number of years stated in the charge for extra rations; that I am not in arrears with the United States on any account whatsoever; and that all dues to the United States for hospital indebtedness have been paid by me; and that the last payment I received was from Paymaster A. B. Casey, and to the 30th day of November, 1870. I at the same time acknowledge that I have received of Wm. B. Bochester, paymaster U. S. Army, this 31st day of December, 1870, the
    sum of eighteen hundred and ninety-two dollars and-cents,
    being the amount in full of said account, by c’k No. 763, on the U. S. Treasury. „
    Kobert Garrick,
    
      “ First Lieut. 8th Cavalry.”
    
    VI. The vacancy caused by the mustering out of Lieutenant Garrick was filled by the transfer of “ First Lieut. Andrew P. Oaraher, First Infantry, to the Eighth Cavalry, vice Oarrick, mustered out” by a general order issued by direction of the President, dated January 2, 1871, to take effect January 1, 1871. Lieutenant Oaraher was commissioned as first lieutenant July 28,1866. He was promoted to the rank of captain in Eighth Cavalry January 15, 1873. Second Lieut. John D.
    
      Pullman, Eighth Cavalry, was promoted first lieutenant in that regiment from January 15, 1873, vice Caraher, promoted, and commissioned March 20,1873. Lieutenant Pullman served as first lieutenant until April 4, 1884, when he .resigned his commission in consequence of his appointment as captain and assistant quartermaster. Second Lieut. Charles H. Lester was promoted first lieutenant in the Eighth Cavalry from April 4, 1884, vice Pullman, and commissioned May 2,1884. Is still in service under said commission.
    VII. The claimant performed no service and received no pay after the date of said muster out. In the month of February, 1888, he offered to the War Department, by letter, his services in capacity of first lieutenant in the Eighth Cavalry. The offer was declined May 8, 1888, on the ground that he was not an officer of the Army.
    
      Mr. W. J. Moberly, for the claimant:
    On a review of the whole case, we submit that there was never proper authority for any order mustering xfiaintiff out of .service, as disclosed by the record in the case; that he has never been dismissed from the service as required by law; that he has never been removed from his office by the nomination and confirmation of another in his stead; and, in consequence, plaintiff is entitled to judgment, as prayed in his original petition.
    In answer to this it will be alleged as an estoppel in the case that plaintiff accepted a year’s pay. This is true, but only under the dictates and demands of the necessitous circumstances of himself and dependent family, induced by the Government’s wrongfully withholding his salary; and we submit that no stronger answer can be made against this defense of the Government than the old maxim, nemo allegans suam turpittidinem, audiendus est.
    
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Howard) for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court: The claimant was a first lieutenant in the Eighth Regiment United States Cavalry, when, on the 5th day of October, 1870, the Secretary of War issued an order constituting a board of officers under the following provisions of the Act of July 15, 1870 (16 Stat. L., ch. 294, p. 318) :

“ Sec. 11. That the General of the Army and commanding officers of the several military departments of the Army shall, as soon as practicable after the passage of this act, forward to the Secretary of War a list of officers serving in their respective commands deemed by them unfit for the proper discharge of their duties, from any cause except injuries incurred or disease contracted in the line of their duty, setting forth specifically in each case the cause of unfitness.
“ The Secretary of War is hereby authorized and directed to constitute a board, to consist of one major-general, one brigadier-general, and three colonels — three of said officers to be selected from among those appointed to the regular Army on account of distinguished services in the volunteer force during the late war; and, on recommendation of such board, the President shall muster out of the service any of the said officers so reported with one year’s pay; but such muster-out shall not be ordered without allowing such officer a hearing before such board to show cause against it.”

A list of officers deemed unfit for the proper discharge of their duties was forwarded to the Seeretarv of War, one of' whom was the claimant. He was called before the board, the allegations were read to him, he was informed that interrogatories to witnesses had been sent out by the board, and that copies would be submitted to him. In order to afford him an opportunity to prepare interrogatories the case was postponed until another day. Subsequently depositions were read, some of which were presented by the claimant. He was permitted also to submit documents in his defense, including a written argument.

The board, after mature deliberation upon the evidence adduced,” found him unfit for service and recommended that he be mustered out. The finding was indorsed by the Secretary of War December 27, 1870, to be mustered out. Wm. W. Belknap, Sec. of War.” On the 28th of December, 1870, an order was issued as follows :

“ Washington, December 28, 1870.
“ 1. By direction of the President, on the recommendation of the board convened under section 11 Of the act approved July 15,1870, the following-named officers are hereby mustered out of tbe service for cause other than ‘ injuries incurred or ■disease contracted in the line of their duty:’
■* # * * # * #
“1st Lieutenant Robert Garrick, 8th Cavalry:
* # # * , * * *
“By order of the Secretary of War.
“E. D. Townsend,
Adjutant-General.”

Thereupon he went out of service, presented an account for pay up to that time and one year’s pay in advance, which latter he specifies to be under act approved July 15,1870, section 11; in all, $1,892.

He made no objection whatever to any of the proceedings until more than seventeen years thereafter, when he offered his service to the War Department and claimed never to have been legally out of office. His offer was rejected. He now brings this action to recover the salary of the office as though he had continuously held it ever since December 28, 1870.

The theory of the claimant’s counsel is that the board of officers created under the provisions of section 11 of the Act of 1870 was in the nature of both a court-martial and a retiring board, and was subject to the provisions of the statutes relating to the same. Treating it as such he takes exceptions to the regularity of the proceedings, in that the board made rules which was beyond their authority, that the record fails to show the form of oath administered to witnesses and the official character of the persons by whom administered, incompetency of evidence admitted, and some other alleged irregularities : and, finally, that the whole proceedings were not laid before the President and approved by him as required as to courts-martial by Revised Statutes, section 1342, Articles of War, 104, p. 240.

In Duryea’s Case (17 C. Cls. R., 37), and cases there cited, we have held that the board of officers organized under the act of 1870, above quoted, was only an advisory board, not a court, and was not bound by the statute regulations of courts-martial, retiring boards, and other courts. But if it were otherwise, the record shows that the claimant appeared before the board, cross-examined the witness, made no objection to the admissibility of evidence nor to any of the proceedings from beginning to the end. This was a waiver of the irregularities of which he complains, even if they were such.

Moreover, when the order was issued for his muster out he still made no objection, but accepted the result and took the benefit which the act proffered in such case — one year’s pay in advance — left the service, and never offered to perform any duty for more than seventeen years. This, of itself, was tantamount to a resignation and estops the claimant from successfully demanding either the pay or the office.

Still further, the office which he held has been filled by others by a series of appointments which, according to the decision in the Blake Case (103 U. S. R., 236), would cause his removal if he were not previously out of office.

In the JDuryea Case, and the cases there cited, we have fully expressed our views on all these points, and we need do no more now than to refer to the opinions in those cases.

The petition is dismissed.  