McClure's Estate , 1869 Pa. LEXIS 272 ( 1869 )

The opinion of the court was delivered, November 15th 1869, by

A&new, J. —

The result at which the learned auditor arrived was .correct, though he yielded too much in admitting that the five men put in by the three associations under the provisions of the Act of Congress of March 3d 1865, could be looked upon in no other .light than as substitutes. They were volunteers when enlisted and when the bounties were paid. They became substitutes only in the event that members of the association were drafted. The Act of Congress expressly provided that they should be put in before the draft, and the regulations of the provost marshal general, made under the law, provided that they should be credited to the sub-district to ■ which the associations belong; and prescribed the order in which they should become substitutes for the members of the association, if any should be drafted.

That the recruits themselves were volunteers is beyond doubt. They enlisted voluntarily and not in place of any one. The government recognising that fact paid them a bounty as volunteers, permitted them to select their own regiments and mustered them in at once before the draft. The fact that they were procured by the associations to enter the service does not detract from their own character as volunteers; nor is this character changed by the subsequent draft of members of the association, and their then standing as substitutes of the members drawn. This is simply the reward offered by the government to the association for its service in procuring the volunteers. Being in fact volunteers they were credited generally to the sub-district, and would stand as a general credit if none of the members of the association should be drawn. The only operation the Act of Congress had, was, when a member of the association should be drawn, to cause the general credit then to enure to the particular benefit of the association procuring the volunteer, thus screening its drafted member from service, as the reward of the association for its service in procuring the volunteer. These five men being volunteers when the bounty was paid, the time of the passage of the Act of Congress can make no difference. There was no error in allowing the estate of McClure the credit for their payment. This renders the other question as to the amount stated of no importance.

Decree affirmed.