2. Between general law and special act-Continued. (b) Such acceptance does not estop-Continued.

If a claimant who has been pensioned under a special act establishes his claim under the general law, he has the right to surrender his certificate under the special act, and in lieu take such pension as he may show himself entitled to under the general law by reason of the express provisions of section 4715, Revised Statutes. T. Miller Raub (Asst. Sec. Bussey), 3 P. D., 206.

A pensioner, under and by reason of a special act of Congress, may prosecute a claim for pension under the general law, and upon proof of same may elect to take the pension provided by the general law or retain that which is provided by the special act. But the pensioner may not hold under the general law and also under a special act at the same time. (Citing and following Ollie M. French, 3 P. D., 94.) Caroline M. McDougal (Asst. Sec. Bussey), 3 P. D., 269.

Although the rate of pension is fixed by a special act, and may not, therefore, under section 4720, Revised Statutes, be varied by the provisions of the general law, yet, under section 4715, Revised Statutes, the pensioner may surrender his certificate under said act and take any pension he may be entitled to under the general law. William Gallagher (Asst. Sec. Bussey), 4 P. D., 283.

A pensioner under a special act may surrender his certifi cate thereunder and take under the general law; or if the pension under the special act is greater than is allowable under the general law, and the claim under the general law entitles to arrears, prior to the commencement of pension under the special act such arrears may be paid without surrendering the certificate under the special act. Robert H. Brown (Asst. Sec. Bussey), 4 P. D., 305.

(c) But a special-act pensioner may not receive additional pension.

Section 4720, Revised Statutes, prohibits the payment of any additional allowance beyond that stated in the special act. Jane Dulaney (Sec. Schurz), 5 P. D. (0. s.), 435.

Under section 5 of the act of July 25, 1882, a pensioner under a special act may not receive in addition thereto a pension under the general law, unless said special act expressly so provides. Daniel W. Martin (Asst. Sec. Hawkins), 1 P. D.,

408.

3. Between general law and act of June 27, 1890.

A pensioner under the act of June 27, 1890, may prosecute a claim for pension under the general law or any special act of Congress, but no person shall receive more than one pension

2. Between general law and act of June 27, 1890-Continued. for the same period. Lyman T. Haines (Asst. Sec. Reynolds), 7 P. D., 42.

When claim for increase of invalid pension and claim for pension under the act of June 27, 1890, are pending at the same time, a different attorney appearing in each case, claimant has a right to elect under which law he will be pensioned, and the attorney in the successful claim is entitled to the fee. Robert E. Quivey (Asst. Sec. Reynolds) 7 P. D., 58.

Section 4715, Revised Statutes, relating to the matter of "election," is not properly applicable to the administration of the act of June 27, 1890, the provisos of section 2 of the latter act having clearly designated under what circumstances claimants or applicants under other laws shall receive its benefits. Clement B. Guchess (Asst. Sec. Reynolds), 8 P. D., 118.

The claimant, being a pensioner under prior laws at less than $6 per month and having shown himself entitled to the benefits of the act of June 27, 1890, a certificate under the latter act must issue to him, no election on his part being necessary; and his acceptance of pension under said act does not preclude him from thereafter prosecuting a claim for and receiving pension under any other act, the only restriction being that he shall not receive more than one pension for the same period. This decision is not intended to affect adjudications heretofore made by the Bureau of Pensions and accepted by the claimants.

Ibid.

4. Between invalid and dependent pensions.

Appellant was pensioned as dependent father at the rate of $8 per month from October 5, 1883, and at $12 per month from March 19, 1886, having at the same time a claim pending for invalid pension, which was allowed April 12, 1893, at $2 per month from February 21, 1863, $4 from September 13, 1882, and $17 from October 14, 1891, deducting all payments made under the dependent pension certificate. He contends that he should take pension under the invalid certificate to Octo ber 5, 1883, and thereafter under the dependent certificate until October 14, 1891, when he should again be pensioned in accordance with the invalid certificate. Held, That he was entitled to pension under the invalid certificate to the date of the commencement of his pension as dependent father, October 5, 1883, and that he was entitled to elect under which pension certificate he would take pension after that date, and that said election would be final, and thereafter he should be paid pension under the certificate so selected and no other. Jesse Curry (Asst. Sec. Reynolds), 7 P. D., 514.

See SUBTITLE 8.

5. By a mother, between pensions on account of two sons.

A mother may obtain higher pension for another son, of higher rank, by surrendering certificate outained for dependence on a son of lower rank; and such higher pension should commence from date of last payment. Mother of Charles F. and Thomas Kelly (Sec. Browning), 6 L. B. P., 350.

6. Reelection.

When a pensioner was, pursuant to his election, transferred from the roll of invalid pensioners to that of Revolutionary pensioners under the act of March 18, 1818, he may not be retransferred to the former roll in order to bring him within the act of June 7, 1832, as amended by the act of February 19, 1833, as there is no law to warrant such second transfer. Atty. Gen. Butler, 2 Op., 612.

7. Waiver.

See also SUBTITLES 4 and 8.

A claimant for pension under the act of March 9, 1878, should not be required to sign a waiver of all claims for pension under acts passed prior thereto, and such waiver could have no legal effect upon his claim for pension under the act of February 14, 1871 (now section 4736, Revised Statutes), if he should thereafter desire a claim under said law. John Coley (Sec. Schurz), 5 P. D. (0. s.), 69.

8. Notice.

Where the notice sent to the soldier of his privilege to elect to take pension under the general law in lieu of the pension he was receiving under the act of June 27, 1890, did not inform him from what date the old law pension would begin, or that if he accepted it he would have to relinquish all the pension he had received under the act of June 27, 1890, for the same period, and he thereupon made a choice which resulted in depriving him of pension entirely for nine months and gave him a smaller rate for the future, and died about a month after receiving the certificate, the election by him was not binding and final, as he did not have reasonable time and opportunity to take steps to have said action set aside. Such action may now be set aside and readjudication made at the request of his widow. Randal Montgomery (Asst. Sec. Reynolds), 8 P. D., —.

See also ARREARS; CONSTRUCTION OF LAWS; DOUBLE PENSION; REIMBURSEMENT; REVOLUTIONARY WAR (Act of June 7, 1832).

ELLET'S RAM FLEET.

See WAR VESSELS.

EMANCIPATION PROCLAMATION.

See DEPENDENT RELATIVES (Slave mothers).

EMBEZZLEMENT.

See BOUNTY LAND.

ENLISTED PERSONS.

The decision of the question whether claimant's husband was "an enlisted man in the service of the United States" rests with the War Department. Hannah Chapman (Asst. Sec. Reynolds), 7 P. D., 385.

Enlistment is a personal contract between the soldier and the Government, to which no other person may be subrogated by private agreement between himself and the soldier. Mary E. Davis (Asst. Sec. Reynolds), 7 P. D., 56.

Enlistment is a contract between an able-bodied man, duly qualified for the military or naval service, and the United States Government, made through its authorized officers or agents, wherein the recruit obligates himself by oath to serve in the military, naval, or marine service for a certain period of time, in consideration of such bounty, rations, pay, and clothes as are or may be established by law, the Government reserving the right to modify, rescind, or reject the contract at its discretion, agreeably to "public policy." Cornelius Warren (Asst. Sec. Hawkins), 2 P. D., 278.

In order to constitute a valid enlistment, there must be not only a tender of service on the part of the person desiring to enlist, but an acceptance of the same by the Government, acting through some duly authorized officer or agent. Hannah Chapman (Asst. Sec. Reynolds), 7 P. D., 385.

(a) Distinguished from enrollment.

The word "enrolled" is not synonymous with "enlisted," and may refer to the list of recruits made out by the officer organizing the company. Cornelius Warren (Asst. Sec. Hawkins),

2 P. D., 278.

1. Defined-Continued.

(b) Due enlistment construed.

The words "duly enlisted" necessarily mean a regular legal enlistment, such as is authorized by law and recognized by military rule and precedent. Widow of Pierre M. Kennerly (Asst. Sec. Hawkins), 2 P. D., 265.

In order to be "duly enlisted" it is not absolutely necessary that a soldier be enlisted by a regular recruiting officer, but the enlistment must be in pursuance of some law authorizing the raising of troops, and in some command whose formation is legally provided for and called into existence. Ibid. (c) Voluntary enlistment construed.

The act of March 3, 1877, is remedial being designed to benefit those excluded by section 4716, Revised Statutes, and to hold the words "voluntarily enlisted" to mean an enlistment which did not involve any action on the part of the recruit, except a verbal request or an enrollment by the recruiting officer without the administration of an oath, would be a strained and unauthorized construction. Cornelius Warren (Asst. Sec. Hawkins), 2 P. D., 278.

2. When enlistment commences.

Enlistment commences with the date of enrollment, and not with that of muster in. Bradford C. Kinyon (Actg. Sec. Cowen), 2 P. D. (o. s.), 9.

3. Date of, as evidence.

The date of enlistment is evidence only so far as that fact may elucidate the purposes of enlistment. Franklin S. Cowen (Asst. Sec. Reynolds), 7 P. D., 374.

4. Under act of July 27, 1892.

Enlistment is a prerequisite condition of title to pension under the act of July 27, 1892, and can be proven in cases thereunder only by the records or by the certificate of the proper officer of the War Department. Evidence as to performance of service or as to honorable discharge therefrom is incompetent and inadmissible in the absence of above proof as to enlistment. William C. Williamson (Asst. Sec. Reynolds), 8 P. D.,

See also DESERTION; DISLOYALTY; EVIDENCE; SERVICE.

EPILEPSY.

See EVIDENCE (Record); SEQUENCE.

EQUIVALENT DISABILITIES.

See DISABILITIES.