4. Allegata et probata-Continued.

attacked with a severe pain in the right side disabling him for military duty, and the disability resulted in internal abscess, although no abscess is found on examination. Widow of Charles H. Noble (Asst. Sec. Bussey), 6 P. D., 268.

(a) Under act of June 27, 1890.

If an application for pension under the second section be filed, and the proof shows that a pensionable disability under the act does not exist, no issue will be made thereunder and the claim should be rejected. If an application be filed under the second section and it can not be shown that a pensionable disability existed at the date of filing, but such a disability is shown to have existed subsequently, then before pension can be allowed for said disability, a new declaration must be filed. Timothy L. Carley (Asst. Sec. Reynolds), 7 P. D., 12.

See also James J. Durkee, general title DECLARATIONS.

5. Benefit of doubt.

Where the proofs as to the question of actor and subject are balanced, and it is impossible to determine by them whether the case be one of contemporaneity or collocation only or of cause and consequence, it is a reasonable inference of public policy to presume in favor of the service. Atty. Gen. Cushing, 7 Op., 149.

The soldier being found one morning in his tent dead, with a shot through his head, and the circumstances of the case all tending to show death was due rather to accident or the act of another than to suicide, the presumption should incline toward the claimant, and claim be allowed, as held in the case of Mary Jane Vimont. Citing, also, Nathaniel Cook, as to line of duty. Widow of John Benner (Sec. Delano), 1 P. D. (0. s.), 355.

Where it is satisfactorily shown that the cause, due to the service, reduced the soldier to such a low state that he died of a disease the origin of which skilled physicians were unable to determine, but which all the facts and surrounding circumstances tend to show was due to his enfeebled condition from the service cause, or that he was unable, in consequence of such condition, to resist the attack of the fatal disease, the claimant should be given the benefit of the doubt, and claim allowed. Widow of Valentine Schernecker (Sec. Teller), 14 P. D. (o. s.), 130.

It being more probable from the evidence that the disability originated from causes to which the soldier was necessarily exposed while in the line of duty than from causes having no

5. Benefit of doubt-Continued.

necessary connection with the service, the presumption should incline toward the claimant, and the disability be held due to the former causes. David A. Sawyers (Asst. Sec. Hawkins), 2 P. D., 70.

Where there is lack of positive evidence showing origin of an alleged disability in the line of duty, and yet there is a record of the existence of the disability in the service, and a line of circumstantial evidence of great weight sustaining the claimant's allegations, there will follow a reasonable presumption in favor of the claim. Peter N. F. Von Otterndorf (Asst. Sec. Bussey), 3 P. D., 341.

The medical referee having held that the present disability may, from a medical standpoint, have been caused by the injury shown to have been incurred in service and line of duty, and no other reasonable or probable cause for said disability being shown, claim is allowed, although the medical referee stated, in his opinion, that he did not think the evidence showed that said disability was a result of said injury. George L. Emil Sherer (Asst. Sec. Bussey), 4 P. D., 5.

It being shown that the soldier died from an attack of pleuropneumonia eight years after discharge; that he was sound at enlistment; that he was broken down in health at discharge, and suffered severely from a pain in his side continuously from discharge until death, which became later extremely severe, and that there were indications of approaching dissolution before the fatal pneumonia appeared, it is held that although the connection between the fatal pleuro-pneumonia and the service is not medically established under the facts shown, the claimant should be given the benefit of the doubt, and the claim should be allowed. Widow of John Garrett (Asst. Sec. Bussey), 4 P. D., 385.

In cases where the doubts as to the merits of the claim exceed the evidences of merit, the rule of practice requires the rejection of the claim. Where, however, the evidence as a whole gives a claim the appearance of merit, and the defect in the chain of evidence is remediable by a reasonable presumption in its favor, the claim should be admitted. Sarah Chapin (Asst. Sec. Bussey), 5 P. D., 85.

See SUBTITLE: CERTIFICATE OF DISABILITY.

6. Bounty-land warrant-as evidence of title to pension.

The fact that a widow had completed proof of title to a bounty-land warrant does not show her entitled to pension, as proof that the soldier's death was due to the service, and

6. Bounty-land warrant-as evidence of title to pension-Cont'd. to cause originating in line of duty therein, which is essential to show her title to pension, is not required in a bountyland claim. Widow of Jeremiah Howe (Sec. Usher), 5 L. B. P.,

155.

The allowance of a bounty-land warrant is not necessarily evidence of title to pension, as the conditions on which such warrant issued are not always the same as those entitling to pension. Ibid.

The granting of a bounty-land warrant based upon the title thereto conferred by the act of March 3, 1855, does not necessarily constitute proof of title to pension under the act of July 27, 1892. William C. Williamson (Asst. Sec. Reynolds),

(a) When prima facie evidence of title to pension.

The Government having accepted parol evidence of service and granted a bounty land warrant thereon, it is now bound, under section 3 of the act of March 9, 1878, to accept the grant of land warrant as prima facie evidence to establish a pension claim based on the same evidence of service. Mary Curry (Sec. Schurz) 6 P. D. (o. s.), 47.

Application for pension where claim is based upon granting of bounty land to substitute, proved by parol evidence, though principal subsequently received bounty land based upon roll bearing his name and his own affidavit: Held, That the granting of bounty land to substitute furnished prima facie evidence of widow's title to pension, and that the subsequent granting of bounty land to principal was not sufficient to rebut title of substitute, when as a matter of fact the office filed a caveat in the Land Office against the issue of patent in warrant of prin cipal; the Government can not accept in rebuttal evidence which it declined to accept for that purpose in the adjudication of the bounty land claim, in bar to widow's claim for pension resting on such grant. Betsy A. Fox (Sec. Schurz), 7 P. D. (0. s.), 31.

Under the act of January 29, 1887, a grant of bounty-land warrant is prima facie evidence only of the service (and discharge) necessary under the bounty-land law to entitle to a warrant, and is no evidence under said act as to length of service or that service was rendered in Mexico, or on the coasts or frontier thereof, or en route thereto. Robert W. P. Muse (Asst. Sec. Hawkins), 2 P. D., 180.

(b) When not prima facie evidence of title to pension.

The allowance of bounty land to a teamster (not an enlisted or drafted man) under the act of March 3, 1855, can not be

6. Bounty-land warrant—as evidence of title to pension-Cont'd. (b) When not prima facie evidence of title to pension-Continued.

regarded as prima facie title to pension under the act of March 9, 1878. Mary Scully (Sec. Schurz), 6 P. D. (o. s.), 393.

The prima facie evidence of title to pension established by issue of bounty-land warrant may be rebutted upon new report from rolls showing that warrant was improperly granted; and where the claimant is unable to furnish further proof, such application for pension should be rejected. Nathaniel Aitken (Sec. Schurz), 7 P. D. (o. s.), 94.

Congress, in providing that the grant of a land warrant shall be prima facie evidence of service, meant such prima facie evidence shall be considered in connection with other evidence in determining the question of service. It shifts upon the Government the burden of proof; places upon it the duty of disproving, if necessary, the prima facie case. Lucy A. Wood (widow) (Asst. Sec. Bussey), 5 P. D., 75.

(c) When may be rebutted as prima facie evidence.

In all cases of doubt, proof of the fact entitling a party to the benefits of the pension laws must be made. The burden of proof is upon the claimant. When facts are established, such presumptions as are justly inferable therefrom and are founded on our experience of the connection between the fact proved and that presumed are allowable. These inferences may be certain or probable, as in cases where such matters are referred to the arbitrament of a jury or other triers of the fact in issue. Widow of Thomas T. Vimont (Sec. Harlan), 5 L. B. P., 445.

7. Burden of proof.

Where the mother and alleged widow of soldier contest for pension and four investigations by special agent fail to reach a satisfactory result: Held, That, for the present, the Government should incur no further expense, but that the burden of proof rests upon the parties in interest to file evidence to determine the question of title. Julia McLaughlin (Sec. Schurz), 4 P. D. (o. s.), 163.

In case of an accidental wound by the claimant's own gun, there being no evidence on file to corroborate his statement as to details, it is incumbent upon him to furnish proof to conclusively establish the fact that the wound was received in the line of duty. Mossir Dishony (Sec. Schurz), 6 P. D. (o. s.), 356.

The burden of proof in establishing a prima facie case for pension is on the claimant, and it is not the purpose of a special examination to supply evidence which should be furnished by the applicant. Alida Cramer (Asst. Sec. Hawkins), 1 P. D., 47.

7. Burden of proof-Continued.

The burden of proof to establish adulterous cohabitation is on the Government. Addie A. Crofoot (Asst. Sec. Hawkins), 1 P. D., 391.

See also ADULTEROUS COHABITATION.

9. Certificate of disability-generally.

Record evidence, such as certificate of disability upon which a soldier was discharged from the service, made contemporane ously with the facts to which it relates, or upon which it was based, and showing origin, should be accepted as proof appertaining to the incurrence of claimant's alleged disability. Such a record possesses a value superior to all other testimony in relation to the facts therein recited. Thomas H. McCreary (Asst. Sec. Hawkins), 1 P. D., 275.

The certificate of disability on which claimant was discharged, stating that his injury was received in the line of duty, is considered as competent contemporaneous record evidence as to the incurrence of an accidental injury in the line of duty. Henry A. Helmer (Asst. Sec. Bussey), 3 P. D., 111. Reconsidered and overruled: 7 P. D., 376.

(a) Navy certificate.

A certificate, or official report, of a sailor's death or disability, made under and in conformity with paragraph 1417, Article XXVI, Regulations for the Government of the United States Navy (1870), page 220, is entitled, as record evidence, to the same significance as that which is possessed by a surgeon's certificate of disability granted to a soldier, and must be accepted, in the absence of proof showing fraud or mistake, as conclusive evidence of the state of facts which it discloses. Widow of Alfred T. Cowie (Asst. Sec. Hawkins), 2 P. D., 58. (b) Statements presumed to have been from personal knowledge.

The statements contained in a surgeon's certificate of disability, as to the name and origin of a disease or injury, are presumptively derived from personal knowledge, or based upon proper and reliable information. John W. Benedict (Asst. Sec. Hawkins), 1 P. D., 32.

Where a certificate of disability states that the disability alleged was incurred by claimant while in the line of duty, the reason for said statement is presumptively derived from personal knowledge, or based upon proper and reliable information. Lewis F. Stolzenburg (Asst. Sec. Hawkins), 1 P. D., 429.