while commanding a division of troops in the service of the United States." This finding was approved by the President, and by his authority and direction this order was issued from the Adjutant-General's Office, June 9, 1868: "Brevet MajorGeneral Thomas J. Wood, Colonel 2d United States Cavalry, having, at his own request, been ordered before a board of examination, and having been found by the board to be physically incompetent to discharge the duties of his office on account of wounds received in battle, and the finding having been approved by the President, his name will be placed upon the list of retired officers of that class in which the disability results from long and faithful service, or some injury incident thereto. In accordance with sect. 32 of the act approved July 28, 1866, General Wood is, by direction of the President, retired with the full rank of major-general." General Wood accepted the rank of major-general on the retired list, as contained in said order, and received the pay of that rank from June 10, 1868, to March 3, 1875.

Section 1 of the act of March 3, 1875, c. 178, entitled "An Act for the relief of General Samuel W. Crawford, and to fix the rank and pay of retired officers of the army," provides that the retirement of General Crawford, as a colonel, for disability on account of a wound received in battle, shall be amended so that he shall be retired and be borne on the retired list of the army as a brigadier-general," he having held the rank of a brigadier-general at the time he was wounded," his retired pay as brigadier-general to commence from the passage of the act. The second section provides as follows: "All officers of the army who have been heretofore retired by reason of disability arising from wounds received in action shall be considered as retired upon the actual rank held by them, whether in the regular or volunteer service, at the time when such wound was received, and shall be borne on the retired list and receive pay hereafter accordingly; and this section shall be taken and construed to include those now borne on the retired list placed upon it on account of wounds received in action." The section contains some exceptions, which it is not contended apply to the case of General Wood.

On the 23d of March, 1875, an order was issued from the

Adjutant-General's office, providing that, by direction of the President, and conformably to said act of March 3, 1875, the retired list of the army, under the heading, "Officers retired with the full rank of the command held by them when wounded, in conformity with sections 16 and 17 of the act of August 3, 1861, and section 32 of the act of July 28, 1866," is amended to fix the rank of the following named officers, from March 3, 1875, as below enumerated: Brigadier-generals, Thomas J. Wood (heretofore major-general), and two other major-generals; colonels, three brigadier-generals; lieutenant-colonels, two colonels; major, one colonel; mounted captain, one lieutenant-colonel; captains, two colonels; mounted first lieutenants, two mounted captains; first lieutenants, three captains, and one mounted first lieutenant; second lieutenant, one mounted second lieutenant.

There were seventy-three officers retired on the rank of the command held by them when wounded, under sect. 32 of the act of 1866. Of these, all but nineteen fell within the exceptions named in sect. 2 of the act of 1875. Of these nineteen, eight were restored to the rank on which they were originally retired, after the promulgation of the order of March 23, 1875. After March 3, 1875, General Wood received only the pay of a brigadier-general retired, $4,125 per year, the pay of a majorgeneral retired during the same time having been $5,625 per year. In September, 1879, General Wood brought suit against the United States in the Court of Claims to recover the sum of $1,500 a year for four and a half years, as such difference in pay, claiming that he held the office of major-general on the retired list of the army by appointment of the President, by said order of June 9, 1868, and that Congress had no power to remove him from that office and appoint him to the office of brigadier-general on the retired list. The Court of Claims dismissed the petition on the merits. The view of that court was that, under the statutes of the United States in reference to the army, the office of an officer of the army and his rank are not necessarily identical; that the office has a rank attached to it. expressed by its title, when no other rank is conferred on the officer; that, the office remaining the same, the officer may have a different rank conferred on him, as a title of distinction,

to fix his relative position with reference to other officers as to privilege, precedence, or command, or to determine his pay; that, by sect. 1274 of the Revised Statutes, the pay of officers on the retired list of the army is determined by the rank upon which they are retired; that, by sect. 1094, the officers of the army on the retired list are a part of the army of the United States, and, therefore, no one can be upon that list who is not an officer appointed in the manner required by sect. 2 of art. 2 of the Constitution; that an officer of any grade, on the active list, thus appointed, may be retired with a different rank from that which belongs to his office, when Congress so provides; that this is not to appoint him to a new and different office, but is to transfer him to the retired list, and to change his rank, while he holds the same office; and that in connection with this change of rank his pay may be changed. These views appear to us to be sound. General Wood, holding the office of a colonel of cavalry in the army, his retirement with the rank of major-general, under the act of 1868, did not confer on him the office of major-general. He remained in the office of colonel of cavalry, and acquired a higher rank, and higher pay, as a retired officer. Such rank not being an office, Con gress could change his rank, and with it his pay, as it did by the act of 1875. His actual rank when he was wounded was that of brigadier-general of volunteers, although the rank of the command which he then held was that of a major-general. The rank of his command when wounded was the test of rank and pay under the act of 1866, while his actual rank when wounded, whether in the regular or volunteer service, was the test of rank and pay under the act of 1875. Congress had the same right to change the claimant's rank and pay, by reducing them, that it had to change the rank and pay of General Crawford, by sect. 1 of the act of 1875, by increasing them, the standard in both cases being the actual rank held by the officer at the time he was wounded. The offices of both were left untouched. The pay of retired officers is a matter entirely within the control of Congress, and so is their rank. Judgment affirmed.

THE "JULIA BLAKE."

1. The master of a vessel can neither sell nor hypothecate the cargo, except in case of urgent necessity; and he can only lawfully do what is directly or indirectly for its benefit, considering the situation in which it has been placed by the accidents of the voyage.

2. The necessity under which he acts is a question of fact, to be determined in each case by its circumstances; and upon his hypothecation of the cargo under his implied authority the lenders are chargeable with notice of the facts on which he appears to rely as his justification, and they must make inquiries and judge for themselves and at their own risk whether the owner, if present, would do or ought to do what, in his absence, the master is undertaking to do for him. Before there can be a recovery against the owner, it must be shown that the circumstances were such as to make it apparently proper for the master to do what he has done. To this extent the burden of proof is clearly on the lenders.

3. Where it appears that from the port where the vessel entered in distress the cargo could be forwarded by another vessel, and that it was for the interest of the shipper that it should be so forwarded, instead of being hypothecated to pay for the repairs of the vessel, and that they could not have been effected without an expense to him of very much more than it would cost to reclaim his property, pay all lawful charges on it, and forward it Held, that the master had no authority to pledge the cargo without the consent of the shipper or the consignee.

by another vessel,

4. Although the bottomry bond cannot be enforced against the cargo, the latter will not be held in that suit for any charges which the vessel may have thereon, where a claim for them is not made in the libel.

APPEAL from the Circuit Court of the United States for the Southern District of New York.

The case is fully stated in the opinion of the court.

Mr. George De Forest Lord for the appellant.

Mr. Everett P. Wheeler for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This is a suit instituted by the Bank of St. Thomas, as the holder of a bottomry bond, against the British brigantine "Julia Blake," her cargo and freight. The decree of the District Court condemned the vessel and freight, but acquitted the cargo and its claimants. No appeal was taken on behalf of the vessel and freight, but the libellant carried the case to the Circuit Court for a review of the decree as to the cargo. The

bond was for $11,600, with fourteen per cent marine premium, and the net proceeds of the vessel and freight were about $3,500. On the hearing in the Circuit Court the libel was again dismissed as to the cargo, and from a decree to that effect this appeal was taken.

The facts found by the Circuit Court, on which, in our opinion, the rights of the parties depend, may be stated as follows: :

The "Julia Blake," a British vessel, owned by Peter Blake, of Nova Scotia, left Rio de Janeiro on or about the 31st of March, 1876, for New York, having on board a cargo consisting of five hundred and eighty-two logs of rosewood. The bills of lading were three in number, and were drawn to the order of James Philip Mee, of Rio de Janeiro, the shipper, for two hundred and fifty-three, one hundred and thirty-nine, and one hundred and ninety logs, respectively. About two hundred of the logs belonged to Mee, but the claimants had made advances on them to him. All the rest belonged to the claimants. The charter-party was dated March 16, 1876, and named Mee as the charterer. The stipulated freight was £220, of which £110 was paid in advance.

Mee gave the master of the vessel on sailing a letter of instructions, directing him to proceed to New York and there consign his vessel and cargo to Winthrop Cunningham & Sons, Philadelphia, the claimants, or their agents, and if compelled, by stress of weather or other accident, to put into St. Thomas, to consign the vessel to Lamb & Co. The voyage was prosecuted with safety until the 3d or 4th of May, on one of which days the rigging of the vessel parted, and her masts fell, the mainmast breaking at the saddle, about six feet above the deck, the foremast at the head. The fallen spars and wreck remained for some time alongside and thumping before they could be cleared away. This rendered it imprudent to prosecute the voyage, and the master properly made for St. Thomas as a port of distress, where he arrived on the 27th of May. On his arrival he applied to the acting British consul, who directed a survey to be made by the harbor-master, the principal shipwright at the port, and the master of a vessel. They properly recommended a discharge of the cargo, and it