23. Service-Continued.

(f) Cherokee removal.

Troops employed in removing the Cherokee Indians from North Carolina in 1838 are not entitled to the benefits of the act of September 28, 1850, unless called into service for the express purpose of suppressing the hostilities of the Indians, or actually engaged in such duties. Communication to J. P. Caldwell, H. R. (Sec. Stuart), 2 L. B. P., 23.

See also SUBTITLES: 1 (e) TEAMSTERS.

(g) Constitution, U. S. S.

Service on the U. S. S. Constitution during the war with Mexico does not entitle to bounty land, as said vessel was not engaged in said war. Colville Tenett (Sec. McClelland), 4 L. B. P., 264.

(h) Creek disturbances.

Title to bounty land is acquired under the act of September 28, 1850, by service of noncommissioned officers, privates, etc., in the Creek disturbances" between May 5 and September 30, 1836, such disturbances being construed to constitute a "war" within the meaning of said act. Communication to H. A. Haralson, H. R. (Sec. Stuart), 2 L. B. P., 46.

(i) Dispatch bearer.

Service as a bearer of dispatches, during the Mexican war, from the vice-consul at Mazatlan and the commodore of the United States squadron in the Pacific to the United States consul at Havana was not military service, and does not, therefore, entitle to bounty land under the act of March 3, 1855, as only those in the strictly military service of the United States and those specifically designated in said act are enti tled thereunder. James Reid (Sec. McClelland), 4 L. B. P., 187.

(j) Evidence

(1) When parol is admissible and when not.

As the evidence shows the name of the one for whom claimant alleges he served as substitute is found on the muster roll, and that he has received bounty land, parol evidence is inadmissible to contradict or vary the rolls, and claim was properly rejected. Edward Blodgett, alleged substitute of Linus Blakeslee (Sec. Thompson), 4 L. B. P., 431.

Where the records show a discharge but fail to show the cause thereof the latter fact should be shown by other testimony than the applicant's own affidavit. and if the testimony

23. Service-Continued.

(j) Evidence-Continued.

of commissioned officers is not obtainable may be shown by testimony of other credible witnesses. Elijah A. Peyton (Sec. Ewing), 1 L. B. P., 103.

The records showing that the principal performed the serv ice, parol evidence can not be admitted to contradict the record. William K. Whitney (Sec. Thompson), 4 L. B. P., 314.

Bounty land can not be allowed upon parol testimony establishing the service of the individual unless it is shown by record evidence that the company or regiment in which the party claims to have served had an existence. There being no record of "Capt. Paul's" company, Indian war, 1790 and 1792, these claimants can have no title under the acts of March 3, 1855, and May 14, 1856. Lewis Six et al. (Sec. Thompson), 4 L. B. P., 410.

The word "service" in the third sections of the acts of March 3, 1855, and May 14, 1856, refers to that of the soldier, not to that of his company, and there being a record of the company, parol evidence is admissible, under the latter act, as to the fact of the soldier's service therein. Minor children of Patrick Hays (Sec. Delano), 8 L. B. P., 156.

The documentary evidence herein, consisting of a purported roll and amended return of the company, taken from the rolls as revised on the first Tuesday of May, 1812, affords no evidence whatever of service of the organization alleged (Captain Hate E. Hall's company of the First Regiment, Second Brigade, Tenth Division, Massachusetts Militia, war of 1812), in that war; and there being no record evidence of the service of the organization, parol evidence can not be accepted as proof that an individual performed service therein. Widow of Asa Farnsworth (Sec. Schurz), 5 P. D. (o. s.), 89.

It has been the uniform practice of this Department, for years past, to hold that parol evidence, submitted to prove individual service, can not be considered in cases where no record of the service of the company exists; and no good reason appears for changing the rule now, notwithstanding there are bounty-land cases on file which have been allowed ou evidence of the character submitted herein. (A roll made up in 1850, by a justice of the peace from the certificates of individuals as to their service in the invasion of Plattsburg, in Captain Matthias S. Jones's company.) Mary Brown, as widow of Matthias S. Jones (Sec. Schurz), 6 P. D. (o. s.), 41.

23. Service-Continued.

(j) Evidence-Continued.

(2) When State records are sufficient.

Bounty-land warrants for service at Plattsburg are properly allowed on evidence from an original roll of a company, on file in the office of the secretary of state of Vermont, which was authenticated by affidavits of officers and privates who served therein. Harriet M. Owens (Sec. Schurz), 5 P. D. (o. s.), 454.

(3) Rebuttal of prima facie title under act of March 9, 1878.

The prima facie title to service pension, under proviso to section 3, act of March 9, 1878, is rebutted by newly discovered evidence giving different name on rolls, and different signature to receipt roll, showing that land warrant was improperly granted. Widow of John Delaplain (Sec. Schurz), 6 P. D. (o. s.), 256.

(k) Florida-service in.

Soldiers of the United States Army serving in Florida in 1850 and 1855, are not entitled to bounty land under the act of March 3, 1855, since they were not engaged in a "war." Communication (Sec. C. B. Smith), 5 L. B. P., 17.

As the records of the War Department show that this claimant's organization (Fourth United States Heavy Artillery) did not serve in Florida during the period of his enlistment, rejection of claim is affirmed. Andrew R. Beeman (Actg. Sec. Bell), 8 P. D., (0. s.), 246.

(1) Indians.

(1) Under act of September 28, 1850.

Title to bounty land is acquired, under act of September 28, 1850, by Indians who were mustered and performed the duties of soldiers. Communication to J. S. Phelps, H. R. (Sec. Stuart), 2 L. B. P., 37.

(2) Contra.

Indians are not entitled to the benefits of the act of September 28, 1850. Wot-se-kai, heir of Tus-tu-mag-gee Cho-pe-o (Sec. McClelland), 2 L. B. P., 225.

(m) Indian wars-"Rogue River," "Navajo and Apache,” and “Apache.❞ Service in "Rogue River," "Navajo and Apache," and "Apache" wars entitles to bounty land. James Dempsey, jr., et al (Sec. McClelland), 4 L. B. P., 255.

13201- -6

23. Service-Continued.

(n) Marine Corps—at Philadelphia.

The widow of a marine stationed at Philadelphia during the Mexican war is not entitled to pension, as the service of hus band was not at seat of war. Anna M. Gould (Sec. Schurz), 4 P. D. (o. s.), 490.

(1) On the coast of Africa.

A marine whose vessel was in service during the Mexican war on the coast of Africa and in the Mediterranean is not entitled to pension, as such service was not in any war, and there is no provision of law for allowing bounty land for service not in war. James Murphy (Actg. Sec. Bell), 7 P. D. (0. s.), 166.

The service of the frigate United States, which was attached to the fleet in the Mediterranean during the Mexican war, does not entitle to bounty land, as it was not in said war, although the commodore of said vessel was under orders to cruise for Mexican privateers, as such orders were issued upon the mere rumor that the Mexican Government had forwarded to Europe blank letters of marque and certificates for naturalization for use in fitting out privateers, and there is no evi dence that any Mexican privateer was put afloat in those waters. There is no justification for classing such service as in the Mexican war. George Gardiner (Sec. Kirkwood), 8 P. D. (0. s.), 412.

(2) Under the joint resolution of August 10, 1848.

The "entire portion" of the Marine Corps, whether they served on land or water, are to be regarded within the true meaning of the resolution of August 10, 1848, as having "served with the Army in the war with Mexico" and entitled to the bounty land and other remuneration which that resolu tion provides. Atty. Gen. Johnson, 5 Op., 155.

A Marine Corps serving on land or on board ship on the Mexican Coast in the Mexican war is within the purview of the joint resolution of August 10, 1848, but the seamen are not so included. Communication to Charles B. Stickney (Sec. Ewing), 1 L. B. P., 76.

Members of the Marine Corps are entitled under the joint resolution of August 10, 1848, if they relinquish or if having received they make restitution of prize money and other extra allowances, and the receipt of a warrant is of itself a sufficient relinquishment of such money and allowances, though an express relinquishment may properly be required, but a marine

23. Service-Continued.

(n) Marine Corps-Continued.

need not prove that he has not received prize money or extra allowances. His own affidavit to that effect is prima facie sufficient, and the burden of proof is thereby thrown upon the Government. Henry McKevitt (Sec. Ewing), 1 L. B. P., 200.

(3) Under the act of September 28, 1850.

Where any portion of the Marine Corps in the several wars referred to in the act of September 28, 1850, was embodied with the Army in the field, and performed service as a part of the line of the Army, it is entitled to bounty land under said act. Communication (Sec. Stuart), 1 L. B. P.,

252.

Under the act of September 28, 1850, officers of the Marine Corps are equally entitled with officers of the Army on account of service in the Mexican war; citing opinion of AttorneyGeneral Johnson, September 17, 1849. Henry B. Tyler (Sec. Stuart, 2 L. B. P., 147.

(0) Militia.

Militia or volunteers serving under the general command of the United States, whether in time of war or not, and whether under the immediate authority of the United States or of a State or Territory, if paid by the United States, are entitled to bounty land under section 1 of the act of March 3, 1855. 7 Op. Atty. Gen., 606. Communication to George S. Houston, H. R. (Sec. McClelland), 4 L. B. P., 56.

Vermont militia not entitled to bounty land for services in northern frontier disturbances of 1838-39. James S. Wilson (Sec. Schurz), 6 P. D. (o. s.), 385.

A member of the Missouri militia whose services were paid for out of the appropriation made June 9, 1860, is within the classes provided for by the act of March 3, 1855, and is entitled to bounty land, whether such services were in time of war or not, according to the Attorney-General's opinion of Decem ber 14, 1855 (q. v.). Daniel S. Lockridge (Asst. Sec. Hawkins),

2 P. D., 368.

See SUBTITLE 23 (hh).

(p) Muster-in.

Title to bounty land under act of February 11, 1847, is not impaired by the fact that the soldier was not mustered into the service with the rest of his company, the final muster-out roll showing the fact of service and that he was regularly mustered out. Jesse E. Davis (Sec. Ewing), 1 L. B. P., 64.