
    Thomas L. McElrath, appellant, v. The United States Appellees.
    
      On the claimant's Appeal.
    
    
      A lieutenant in the Marine Corjps, absent without leave, is dismissed the service in June, 1866. A successor was duly appointed and commissioned. In July, 1873, a subsequent Secretary of the Navy revokes the order of dismissal and accepts the officer’s resignation, who then applies to the Treasury for his pay ad interim. He is allowed half pay, accepts under protest and sues for the balance. Defendants set up a counter claim for the pay allowed, on the ground that the accounting officer acted without authority, and that the money was paid in mistake of law.
    
    The court below decides: (1) That the President may dismiss a military or naval officer without the concurrence of the Senate; (2) That if the order dismissing the officer is. not efficient it will becomo so by the appointment of his succossor-with the advice and consent of the Senate. The officer so dismissed can only be restored by regular appointment to fill a vacancy(3) That the government cannot bo held responsible for the mistakes either of law or fact of its agents in allowing an account of one supposed to be but an officer of the government, and an action lies to recover back money so paid.
    The judgment of the court below is affirmed and upon substantially the same grounds.
   Mr. Justice Harlan

delivered the opinion of the Supreme Court, December 13', 1880.  