The second section of the act of the 31st December, 1792, prescribes the only cases in which a vessel may be registered; they are, where she is built in the United States, and belongs wholly to a citizen or citizens thereof; where she was not built within the United States, but belonged on the 16th May, 1789, and has since continued to belong, to such citizen or citizens; where she was captured in war by such citizen or citizens, and has been condemned as a prize; and where she has been adjudged to be forfeited for a breach of the laws of the United States, being wholly owned by such citizen or citizens. In the last case, the purchaser who applies for a register is required by the fourth section of the same act to produce a copy of the sentence of forfeiture. The act declares that in no other case shall a vessel be entitled to registry. Of course, a register, and such papers as can be given only to vessels having the qualifica tions and requisites for registry, cannot be issued to the purchasers of the Amistad. This, too, appears to have been the uniform practical construction of the act by the Treasury Department, in similar cases—at least since 1812. Such other documents as show the order of sale, its execution by the proper officer of the United States, and the purchase and title of the present owner, ought to be issued to him. To the SECRETARY OF THE TREASURY. H. D. GILPIN. PATENTS FOR PRE-EMPTIONS WHERE THERE ARE CONFLICTING AS SIGNEES. Where an assignee in blank of the floating right of pre-emption to a specific quantity of land is in conflict with an assignee of the same right which has been actually located, and the Commissioner of the General Land Office is satisfied that the assignment in blank is not clearly fraudulent, he ought to issue the patent to the original pre-emptor, leaving the conflicting claims to be settled by courts of justice. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 10th instant, enclosing certain papers from the Commissioner of the General Land Office, relative to the conflicting claims of Mr. G. W. Watterston and Messrs. Millaudon and Hodge, to patents as assignees of the floating rights of certain preemptors under the act of 19th June, 1834; and inquiring whether the same can be issued in cases where the assignment was made by the preemptor in blank, and before the actual location of his floating right. From the papers sent me, it appears that Messrs. Millaudon and Hodge claim these patents on the ground that the lands were purchased by them bona fide, and for a valuable consideration, from a pre emptor having a vested right of entry under the provisions of the second section of the act of 29th May, 1830, as revived by the act above mentioned; but that the actual location under this right not having been made at the time of sale, the assignment was in blank as to the description of the land and the names of the assignees, though complete in other respects, and accompa nied with the duplicate receipt of the payment of the purchase money to the United States. Mr. Watterston, on the other hand, claims these patents on the ground that the lands were purchased by him subsequent to their location under the floating rights, and by a complete assignment; and he alleges not merely that the assignment to Messrs. Millaudon and Hodge is imperfect, and conveys no title, but that it is tinctured with fraud. I am of opinion that, in such a case, if the Commissioner of the General Land Office is satisfied that the assignment to the first assignee is not clearly fraudulent, the patent should be issued in the name of the preemptor, and that the General Land Office should not pass upon the conflicting claims of the assignees. It cannot be doubted that where a preemptor has an ascertained and vested right of entry, he may pass an interest to a bona fide purchaser, which a court of equity would recognise; and yet, for the General Land Office to assume the power of determining how far such an interest is to prevail against an assignee holding a title complete in form, would be to exercise an authority which appropriately belongs to, and can be much better performed by, the judicial tribunals. By issuing the patent in the name of the pre-emptor, and by giving timely previous notice thereof to all parties known to be interested, an opportunity will be afforded to them to test the superiority of their respective claims before a court of justice. Not only did they know, at the time of pur chase, that they became possessed of an imperfect title, (there being no patent issued,) but that they would be subject, in an examination of the conflicting matters of fact and law by the General Land Office, (should it decide them,) to the same trouble and delay that would attend one made in a court of justice, without the advantages incident to the latter. To the SECRETARY OF THE TREASURY. H. D. GILPIN. COLLECTORS' BONDS UNDER ACT OF JULY 4, 1840. Collectors of customs are required to execute new bonds embracing the new duties imposed on them by the act of 4th July, 1840. The act requires all collectors of customs to safely keep, without loaning or using, all the public money collected by them, or otherwise at any time placed in their possession or custody, till the same is ordered by the proper department to be transferred or paid out, except as therein particularly provided; and although he is required to pay it over, the character of his responsibilities and his duties is changed, even though there be no increase of money on his hands. ATTORNEY GENERAL'S OFFICE, SIR: As requested, I have read the argument of Mr. Hoyt, enclosed in his letter of the 29th of December, 1840, which you handed to me, against the right of the Secretary of the Treasury to require from him a new and suitable bond under the act of 4th of July, 1840. I consider it able and ingenious; but I cannot assent to many of its conclusions, especially on the main question at issue. After the full opinion given to you on the 7th of December last, I have not thought it necessary to analyze and sift it with the care which the importance of the subject would otherwise require, and which, at a period of more leisure, I would willingly bestow. I shall, therefore, now only briefly advert to a few points which most forcibly occur to me at the moment. The first position of the collector calls for no commentary. In his second position, "that they [the persons from whom new and suitable bonds are required] were depositaries officially existing, and under bond, before the act," I cannot concur; for before the act, there were no such depositaries recognised by any law whatever. The last depositaries known to any act of Congress, prior to the act of 4th of July, 1840, were the local banks; and it is very clear that the independent treasury act did not refer to them. This position of the collector is of itself an error, and consequently the argument based upon it is invalid from beginning to end. The third position, (that they are depositaries who may have accumulations of money in their hands, consistently with the act of July 4, 1840,) is in one sense correct; that is, if we understand the accumulation to mean any money received, or required to be received, under the law of 1840, by the officer. But, taken in that sense, it does not exclude the collector at New York. The sixth section provides for such accumulations of public money; it declares that all collectors of customs (a phrase which is broad enough to include the collector of New York) " be, and they are hereby, required to keep safely, without loaning or using, all the public money collected by them or otherwise, at any time placed in their possession or custody, till the same is ordered by the proper department to be transferred or paid out," except as is thereinafter particularly provided. The particular exception so provided for, and applicable to the collector at New York, will be found in the ninth section of the act. It is, that he shall pay over to the receiver general at New York, under the directions of the Secretary of the Treasury, as often as once a week, the money in his hands. That is all. Consequently, between the last order of transfer, and the one next to follow it, there must be an accumulation to which the subsequent order of transfer relates. So far, there is an accumulation of money in his hands, by the ordinary and usual operation of law. But, suppose a case of vacancy in the office of receiver general at New York for several weeks, occasioned by death or otherwise-a contingency which must often happen: may not money then accumulate still more in the hands of a collector, and could not the Secretary of the Treasury use it while there? Could not the Treasurer draw directly upon it? In such a contingency, it appears to me the collector at New York is, under the act, and ought to be, charged with the safekeeping, transfer, and disbursement of the money collected by him; or, at all events, that he may be so charged-which, legally speaking, is the same thing. If this is not so, how is the seventeenth section to be made applicable to him? If this is not so, how can he be punished criminally, as provided by that section, if he should convert, invest, or loan all the revenue collected at New York? That section applies, in terms, only to officers who are thus charged; and being so charged, they become depositaries of the moneys accumulating in their hands, in the manner to which I have adverted. The sixth section is that which defines the officers who become depos itaries; it fixes the nature of, and the title to, the money while in their hands; it changes that which they receive, absolutely and specifically, into public money, in contradistinction to the condition in which it was formerly held by them before it was brought into the treasury by warrant; it makes the whole of it (with the exception of such as is by law to be deducted from the accruing revenue) public money, from the moment it is collected from the citizen, until the moment it is paid back to some other citizen in satisfaction of his demand upon the government. The whole character of the obligation or responsibility of every collector (even though he be not required actually to perform new duties) is, in my opinion, changed by this law from what it formerly was. He holds the public money now, in a different capacity from that in which it was held before; even though there be no increase whatever of the amount in his hands. Nor can I subscribe to the force of the reasoning by which it is attempted to show that the collector of New York is not a "depositary," and yet is "an officer charged by this act with the safekeeping, transfer, and disbursement of public moneys," and, as such, liable to the penal provisions of the seventeenth section. To decide that he is not the former, seems to me to carry with it the conclusion that he is not the latter; and as I should consider it a great omission to exempt him from the penalties to which the collector is subjected, I should certainly think (as you have suggested) that, if any doubt exists, it would be expedient to remove it by a declaratory legislative provision, to be introduced among those you propose to ask from Congress. I may go farther, and say, that the doubt having been started and supported with much plausibility, it will perhaps be best to do so. To the SECRETARY OF THE TREASURY. H. D. GILPIN. EXTRA COMPENSATION OF DISTRICT ATTORNEY FOR EXTRA SERVICES. The district attorney of Vermont is entitled to an allowance for expenses incurred in numerous journeys, undertaken, with the approbation of the Solicitor of the Treasury, for the purpose of securing certain payments due to the United States, and a further allowance for compensation in superintending the sale of certain real estate in Vermont. ATTORNEY GENERAL'S OFFICE, SIR: I had the honor to receive your letter of the 6th instant, enclosing an account of Daniel Kellogg, United States attorney for the district of Vermont, and a letter from him of the 5th instant, explanatory thereof; and inquiring whether the items fall within the exception stated in my opinion of the 17th April, 1840. The items of this account appear to be-1st. Certain expenses, amounting to $218, incurred in numerous journeys (undertaken, as is stated, with the approbation of the Solicitor of the Treasury) between October, 1834, and June, 1838, for the purpose of securing sundry payments from the administrators of Robert Temple, who was charged with certain frauds against the United States. 2d. A balance of an account for services performed by direction of the Solicitor of the Treasury in 1834, in selling certain real estate, and amounting to $8 25. 3d. A claim of $100, for compensation and expenses in September, 1840, in attending a trial in one of the State courts, by direction of the Solicitor of the Treasury. I am of opinion that the first and second items ought to be allowed, if sanctioned by the head of the executive department to whose supervision the particular cases belong. If the third item is (as I presume it is) for "expenses in a suit in which the United States are concerned," it ought also, when so sanctioned, to be allowed, on the principle stated in my letter of the 5th December, 1840. To the SECRETARY OF THE TREASURY. H. D. GILPIN. REFUNDING DUTIES PAID UNDER PROTEST. Duties erroneously paid under protest, and accounted for by the collector, cannot be refunded by the Treasury Department without previous legislative sanction. ATTORNEY GENERAL'S OFFICE, January 22, 1841. SIR: I had the honor to receive your letter of the 9th November, 1840, relative to certain duties alleged to have been paid under protest, by A. H. Denckla and Co., at New York, in January, 1838; and inquiring whether the duties, if erroneously exacted and paid under the protest, can be refunded after the death or change of the collector who received them. In reply, I have to state that, in my opinion, the death or change of the collector makes no difference in the authority to refund duties improperly received, if they were accounted for by him to the United States, or to his successor, as a part of the current revenue. In the case where the collector who received them never accounted for them to the United States or to his successor, they cannot, of course, be refunded. If the party who paid them has any equitable right to look to the United States, it is one that cannot be admitted or acted upon by the Treasury Department, without legislative sanction and approbation. To the SECRETARY OF THE TREASURY. H. D. GILPIN. DISCHARGE OF IMPRISONED DEBTORS. Where imprisoned debtors are discharged on payment of costs, it is to be inferred that the condition embraced only the costs of suit in the cases in which they were imprisoned. The expenses of the examination may be paid from the judiciary fund. ATTORNEY GENERAL'S OFFICE, January 22, 1841. SIR: I had the honor to receive your letter of the 8th September, relative to the terms of the discharge from imprisonment granted by you to Jacob Knight, after an examination made pursuant to the provisions of the act of 6th June, 1798, and inquiring whether the condition that he should be "discharged on payment of costs" will now authorize any pro. ceedings against him to recover the expenses of that examination-he having paid only the taxed costs of suit previous to his discharge. In reply, I have to state that, in my opinion, the condition can only be regarded as applying to the "costs of suit" accruing in the case or cases in which he was imprisoned. That is a well defined phrase, and does not embrace such expenses as those to which you refer. I consider the expenses of an examination as coming within the terms of the appropriation "for defraying the expenses of suits in which the United States are concerned;" and that, as the payment of them by the party was not made a condition of his discharge, they may be paid out of that appropriation. To the SECRETARY OF THE TREASURY. H. D. GILPIN. |