delivered the opinion of the Court:

In the view that we have taken of the merits of the case it becomes unnecessary to determine the question raised on the first assignment of error, as to the admissibility of the vouchers assigned to T. It. Jones & Co. and the checks given to them in payment thereof, without proof of the genuineness of their purported indorsements. Considering the case as if that evidence had been admitted, we think the court did not err in directing a verdict for the defendant. Conceding that Lieutenant Shaw was entitled to pay for the months of December and January and that the United States, having paid the same twice, have the right to recover the money that was paid through fraud or mistake, it became a question of law for the court .to determine upon the evidence, in which there was no conflict, whether the payment to the appellee, as assignee of Shaw, was regular and binding. What was the nature of Special Order No. 278, under which Shaw left his post on December 9 ; where he was required or permitted to. go, and what was the limit of his-absence, are left to conjecture. We must presume, however, that, as recited in the accounts paid by Major Tucker, he had left his post under orders on December 9, and was therefore not there and could not have made out and assigned his December account on the 31st day of that month. *389And the same presumption attaches to the January account. Both must therefore have been made out, indorsed and delivered to the assignees, T. B. Jones & Co., before the pay had accrued due. We must also presume that he was lawfully in Washington on each day that his accounts were signed, indorsed and presented by his indorsee to Major Tucker, who was the regular paymaster there. The regulations (Article 1440) forbade the assignment of an officer’s pay account before it became due, and in doing so declared what seems to be a sound rule of public policy already recognized by the courts in the absence of statute or regulation. Bliss v. Lawrence, 58 N. Y. 442; Schwank v. Wyckoff, 46 N. J. Eq. 560. Lieutenant Shaw had left his post in Utah on December 9, and was in Washington on January 5, and February 5, at least. Being there when his pay became due, it was not reasonably practicable for him to be paid by the paymaster of the distant post which he had left under orders, even if, under that order, it might still be regarded as his station, and it was proper for Major Tucker to pay him, first requiring proof of proper authority for his absence from his post. See Article 1439, supra. He did present his accounts to Major Tucker, producing as reason therefor the order under which he had leave of absence. In the absence of proof to the contrary, Paymaster Tucker is entitled to the benefit of the presumption, which attaches to official acts generally, that he acted within the limits of his authority. The officer’s pay was due. Beport of the payment in Utah had not reached the Treasury. It was not reasonable to suppose that he had been in Utah since the 9th of December to receive his pay, or that he had assigned in advance, in disobedience of the law and the regulations of the service.

No presumption can arise from the action of the officials of the Treasury, for though they first approved and recognized as lawful the'payments made by Major Stanton and rejected those made by Major Tucker, they afterwards passed *390his account and gave him credit also. The decision in one case is set off by that in the other. As the last was made with knowledge of all the facts and after due consideration, it might even be said that it was a final determination, by the executive officers who had caused the institution of the suit, in favor of Major Tucker and of the regularity of his payment to the appellee. No weight, however, need be attached to their action in either case. The paymaster in Utah must be presumed to have had knowledge of the special order under which Lieutenant Shaw had left Fort Douglas on December 9, and had remained away during the remainder of December and all of the month of January. He ought, therefore, to be presumed to have known' that the officer could not have made out and assigned his accounts on the last day of each month as they fell due, and hence that, in violation of regulation No. 1440, he must have made them out and assigned them before they became due.

There is no doubt that each paymaster acted in good faith and without reason to suspect bad faith or fraud on the part of Shaw. But necessarily the payment made by one was irregular and cannot stand, and the Government is entitled to recover it from one or the other of the assignees to whom it was made. Possibly the Army Regulations are somewhat to blame for not making an express and plain provision to cover just such a case as this; but questions with respect thereto arise properly between the paymasters as such and the Government, and are irrelevant here.

Upon all the evidence, including that which was rejected, we are of opinion that the payments made to the appellee were not unlawful and that the United States have no right to recover them of him.

We must, therefore, hold that the court did not err in the instruction to the jury, and the judgment must be affirmed* And it is so ordered.

A motion for rehearing was denied.