The grounds on which the petitioner questions his liability under that judgment are two: 1. That the duty bonds on which the judgments were rendered, were to be obligatory only on the condition that the goods which had been libelled for forfeiture should be restored to the claimant; whereas they were con demned. 2. That the suits upon the bonds were protracted until the principal obligor and the co security became insolvent; which the petitioner considers as a legal absolution to him. In the first ground, the petitioner is mistaken in the fact. The dutybonds were not dependent on the condition of the acquittal or forfeiture of the goods; nor was the amount of the duties included in the stipulation given by David A. Ogden: this stipulation being only for the estimated value of the goods. The duty-bonds were, therefore, entirely distinct from the admiralty proceedings; and the claimant having had the goods delivered to him for sale, as if he had been the regular importer, the duties were due, whatever might be the fate of the admiralty proccedings. The 59th section of the collection law offered the claimant the option to suffer the goods to remain in the custody of the admiralty until the decision, or to take them out and treat them as his own, on the conditions prescribed by that section. These conditions were, that he should give bond in an amount equal to the appraised value of the goods, and also produce a certificate from the collector that the duties had been paid or secured. Of the bond for the appraised value the court takes possession; and the section provides that if judgment shall pass in favor of the claimant, that bond shall be cancelled but it makes no correspondent provision in that event, either for refunding the duties if they shall have been paid, or cancelling the dutybonds if they shall remain uncollected. My opinion, therefore, is, that the duties if paid, and the duty-bonds, remain totally unaffected by the decision on the libel. 3. As to the protraction of the suits: it has been so often decided as to have passed into settled law, that no laches can be imputed to the Govern ment; and that no voluntary forbearance either to institute or to press & suit against the principal can discharge the sureties. To the SECRETARY OF THE TREASURY. WM. WIRT. ATTORNEY GENERAL'S OFFICE, April 3, 1827. SIR: In consequence of the decision of the Supreme Court of the United States in the case of the United States against "three hundred and fifty chests of tea," it occurs to me to suggest the expediency of furnishing a copy of that opinion to the several district attorneys in which there may have been proceedings against any parcel of these teas similarly circumstanced, for the guidance of the officers of the Government in the discontinuance or farther prosecution of the proceedings which may have been instituted. According to this decision, no case of forfeiture can be made as to the teas placed in store by Thomson, and afterwards clandestinely with drawn. All libels, therefore, which may have been filed with reference to forfeiture, on the ground that the duties on these teas had not been secured to be paid, may and ought to be discontinued. According to the same decision, no libel can be maintained in admiralty to enforce the payment of duties. The Supreme Court, however, recognises the lien for duties as a continuing lien, notwithstanding the withdrawal of the teas from the stores; which lien, they say, may be enforced by a suit at common law, to recover the goods on which the lien rests. It is difficult, and might be hazardous, to prescribe any general rule or form of proceeding for the recovery of the teas. The remedy must depend on the peculiar circumstances attending each case, and the forms of action recognised by the laws and practice of the several States in which the cases may arise. The action of replevin is, I believe, în use in most, if not all the States; so also is the action of trover: and in cases where there is difficulty or doubt as to any proceedings at common law, the lien might be enforced by a bill in equity before the court of the United States. I have the honor to remain, sir, your obedient servant, WM. WIRT. To the SECRETARY OF THE TREASURY. ATTORNEY GENERAL'S OFFICE, June 2, 1827. SIR: In answer to the question propounded by the Comptroller, in his letter of the 21st April, and which has just been submitted for my consideration, I am of opinion that, according to the fair and just construction of the act of 20th May, 1826, touching the compensation to witnesses imprisoned to compel their attendance, on account of their inability to give security in a recognizance, such witnesses are entitled to the compensation therein directed, without any deduction for their subsistence during the time of their imprisonment. To the SECRETARY OF THE TREASURY. WM. WIRT. ATTORNEY GENERAL'S OFFICE, SIR: In regard to Sealy's application for a patent for glass furniture for eer and cider pumps, it may be well questioned whether the mere substiution of one material for another be an invention, within the sense of the patent law. It seems to be considered otherwise in England. (Godson on Patents, p. 68, note 6.) In every case of doubt, however, it would seem to e more congenial with the policy of the law to afford the citizen an oppor-. anity of trying the validity of his right by issuing the patent. With this ew, I recommend a patent for the glass furniture, according to the amendment of the petition proposed by Mr. Blagrove, the counsel for the petitioner, in the letter addressed to me, and now sent to be filed with the other papers. To the SECRETARY OF STATE. WM. WIRT. ATTORNEY GENERAL'S OFFICE, June 7, 1827. SIR: In the case of Masters, as he has sold the land, I would advise that immediate notice of the defect of title be given to the purchaser under him; and that the district attorney be immediately furnished with the case, and instructed to take the necessary legal steps to cause the patent to be can. celled. It is necessary to act immediately, because, if any part of the purchase money remains unpaid by Masters's vendee, an immediate proceeding will strip him of the defence of being a purchaser without notice. Both Masters and his vendee should be made defendants to the proceeding. The SECRETARY OF THE TREASURY. WM. WIRT. OFFICE OF THE ATTORNEY GENERAL, July 27, 1827. SIR: I entertain no doubt of the constitutional power of the President to order the discontinuance of a suit commenced in the name of the United States, in a case proper for such an order. Were a district attorney, for example, of his own mere motion, to commence a suit in the name of the United States, in a case wholly unfounded in law, the only effect of which would be to expose the defendant to needless annoyance and expense, I should consider the President not only authorized, but required by his duty, to order a discontinuance of such vexation; for it is one of his highest duties to take care that the laws be executed, and, consequently, to take care that they be not abused by any officer acting under his authority and control, to the grievance of the citizen. But this power is a high and delicate one, and requires the utmost care and circumspection in its exercise; and I could never advise its exercise in any case in which a court of the United States, free from all suspicion of impurity, had, by a positive act on its part, taken cognizance of the case, and given countenance to a claim prosecuted in the name of the United States; more especially where the defendant, with full time and opportunity to have made his defence, silently declines the juris diction of the court, and calls upon the President to arrest the progress of the judicial inquiry. The case of the United States against the mayor, aldermen, and inhabitants of New Orleans, commenced by a petition to the judge of the eastern district of Louisiana, for an injunction to prohibit them from selling certain unoccupied lands lying between the line of buildings fronting on the Mississippi and the river itself: the corporation claiming this property as theirs; and the petition for the injunction asserting the right to be in the United States, and setting forth the grounds on which that right was as serted. The prayer for the injunction called upon the judge to exercise his judg ment on the prima facie legal rights of the contending parties. Had the claim made for the United States presented one of those palpable cases of a claim without law, in which I admit the authority and duty of the Presi dent to interfere, by ordering a discontinuance of the suit, the judge would not have awarded the injunction-for the award of an injunction is a mat ter within the pure discretion of the judge; and the more important the in conveniences likely to result from awarding it, the more scrupulous is the judge in requiring that the case made should be a strong and clear one before he will interfere. It is true, the injunction is always awarded on the case made by the complainant. The judge assumes the case by the bill as true, and, upon that assumption, declares, by the award of an injunction, that the case is a proper one for the interposition of a court of equity. The judge awarding the injunction is not responsible for the truth of the facts alleged by the bill; and, where these facts are of a private nature, lying only within the knowledge of the parties, or depending on the proof of matters in pais, to be thereafter produced by the parties litigant, no other inference can be drawn from the award of the injunction except this: that, if the complainant shall prove the acts which he has asserted in his bill, the case will be a proper one for permanent relief. But the injunction awarded in the case under consideration presents a still stronger inference; for the grounds taken for this junction are not matters in pais within the private knowledge of the pares, to be hereafter made out by proof, but are matters of public law, of hich the judge must be presumed to be officially informed; so that the ward of the injunction in this case has very much the aspect of a decision n the question of right. In this situation of things, for the President to interfere with the action f the judiciary, by an order virtually dissolving the injunction and disissing the bill, strikes me as entirely out of order, and totally inconsistent ith the genius of the constitution. And this view of the subject acquires great increase of force when it is observed that the injunction was awardso far back as the 3d March, 1825; since which, the most ample timeas been allowed to the defendants to file their answer and dissolve the innction, if their case be of that plain and palpable character which alone uld justify the interference of the President in the manner proposed. On e supposition that the corporation of New Orleans have title to the propty, I cannot see on what ground they can decline the injunction of the urt. If, on the other hand, they are conscious that they have not title, annot discover any power in the President to grant them a title. It is blic property, which cannot be given away, or otherwise disposed of, exot by law. I On this view of the subject, I cannot advise the President to a step so precedented as to order a discontinuance of the injunction, and to disim all title on the part of the United States to the property in dispute. opinion is, that the tribunal which has fair and regular possession of subject be permitted to decide it; and, if injustice shall be done to the poration of New Orleans by the court below, there is a court above (the preme Court) to correct the error. You will observe that I have declined the expression of an opinion on question of right. If the question is to be left to the judiciary, (as I k it ought to be,) such an expression of opinion would be worse than ess. It would be indecorous and improper in relation to the tribunals whom alone it belongs to decide the question of right; still, if it be your sure that I should express an opinion on the question of right, it is my y, and I will proceed to do so. WM. WIRT. To the PRESIDENT OF THE UNITED STATES. ATTORNEY GENERAL'S OFFICE, December 7, 1827. SIR: The correspondence between the Secretary of the Treasury, yout predecessor, and the officers of the Bank of Vincennes, which was fur nished to me from your department yesterday, opens new views of the case referred to me, touching the individual liability of the directors and stockholders of that institution, and satisfies me that we are not yet in possession of all the facts necessary to enable me to advise definitively the cours which it would be expedient to pursue in an endeavor to recover the de posites lost to the Government by the mismanagement and fall of that bank. appears by this correspondence that in January, 1819, the president et that bank, by order of the board of directors as he states, solicited these deposites; and in the following April an arrangement was made between the bank and the Secretary of the Treasury, whereby it was stipulated that the deposites of public moneys thus solicited should be made with the bank, on the condition that the bank should pay at sight all drafts which the Treasurer of the United States might draw on it, and should also, from time to time, transfer to the Bank of the United States or its branches, at New York, Philadelphia, Baltimore, Washington, or New Orleans, the excess of public moneys remaining on deposite over and above $75,000: which sum should remain on deposite during the continuance of the ar rangement, and to be transferred in like manner whenever the bank should cease to be employed to receive the public moneys. Very large sums (several hundred thousand dollars) having been deposited under this arrangement in the course of that spring and summer, three drafts were drawn by the Treasurer of the United States on that fund: 1. October 19, 1819, for $4,000; 3. December 28, 1819, for $55,000: of which the first only was paid, after much delay and difficulty; the two latter, so far as I can learn, were never paid at all; and $214,808 56 have, by this solicitation and abuse of confidence, remained as yet lost to the United States. The very short lapse of time between the receipt of these solicited de posites and their disappearance from the vaults of the bank, justifies a suspicion of fraud, which, if it could be followed out and established by fall proof, would leave no doubt of the personal and individual liability of the directors by whom it had been perpetrated. But I doubt, exceedingly, whether a case can be made out which will justify an action at law against the directors or stockholders, or any part of them, on the ground of fraud. The case must be an exceedingly strong one in which they would not be able to satisfy a jury that what we would attribute to fraud was the mere result of too sanguine hopes, injudicious management, and an innocen mistake of the extent of their legal powers. On the facts, as far as they are yet disclosed, I certainly cannot recommend a suit at law. The resolutions of the stockholders and directors, by which the debtors of the bank were permitted to discharge their debts by a transfer of the stock of the bank even if it were a clear technical fraud, would charge only those who were concerned in it; and even them only to the extent of the particular injury: It would be safer, I think, to treat this transfer as a nullity, and the debts & still due, and constituting a part of the fund to which the creditors of the bank have yet a right to look for satisfaction of their claims. This can be |