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favor of Jeremiah Smith, jr., have been discharged by a payment made to another and a different person; but I do think that the sum thereby shown to be due may be thereon paid to the real claimant without any new requisition. Indeed, I do not perceive how a second requisition for the same claim can properly emanate from the War Department. It may be convenient that a warrant in the form of a duplicate should be issued, that, on a proper settlement of the claim, the papers may not appear to be defaced. But that already issued is legally available to the true owner, and of which he may justly claim the benefit. Nor do I think it necessary to ask an appropriation from Congress, supposing the fund already appropriated “ to be not exhausted." Upon the third question proposed, I have difficulties in regard to both the law and the facts; and presuming that no urgent necessity for an immediate reply to it exists, I reserve it for further examination. In the mean time, as it may be desirable for Mr. Smith to receive his money, I take leave to say, that he is clearly entitled to il—there being in my mind no impediment in the way of his immediate payment. I have the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. John C. SPENCER,

Secretary of the Treasury.

PAYMENT OF INTEREST ON PROTESTED DRAFT OF A MINISTER.

In the case of the Hon. James Semple, chargé d'affaires to New Grenada, who had drawn a

draft for his salary which was dishonored at the banking house in London, and the holder subjected to delay thereby, and the drawer to the payment of interest-DECIDED, that the government is liable for such interest; and that Mr. Semple is liable to account to the government for interest on the amount over and above his salary realized by him on the negotiation of such draft from the time he was notified of the mistake.

ATTORNEY GENERAL'S OFFICE,

December 30, 1843. Sır: In reply to your note of yesterday, I have the honor to state, as my opinion, that the United States are chargeable with the interest upon the protested draft referred to; the Supreme Court, in the case of the United States vs. the Bank of the Metropolis, reported in 15 Peters's Supreme Court Reports, 392, having decided that “when the United States, by its authorized officer, become a party to negotiable paper, they have all the rights, and incur all the responsibilities, of individuals who are parties to such instruments.” I am further of opinion that Mr. Semple is chargeable with interest upon the excess received by him on the settlement of his accounts-not from the date of the over payment, but from that of the notice to him of the mistake. I have the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. A. P. UPSHUR,

Secretary of State.

REMOVAL OF CAUSES FROM STATE TO FEDERAL COURTS.

Alexander, a post office agent, was sued in Georgia for damages for a malicious prosecution,

and sought to have the cause removed to the federal couris, on the ground that he was a federal officer-help, that his being an agent in the employment of the Post Office Depart. ment did not give the right; but if he were a citizen of a State other than Georgia, his case would have been provided for by acts of Congress.

ATTORNEY GENERAL'S OFFICE,

December 30, 1843. Sır: The only acts of Congress that I find, having reference to the removal of causes originated in State courts into the courts of the United States, are those of the 24th of September, 1789, (ch. 20, sec. 12, 1 vol. Story's Laws, 57;) of the 4th of February, 1815, (ch. 184, sec. 8, 2 vol. Story's Laws, 1492;) of the 3d of March, 1815, (ch. 246, sec. 6, 2 vol. Story's Laws, 1518;) and of the 3d of March, 1817, (ch. 282, sec. 2, 3 vol. Story's Laws, 1649.) The three acts last named apply exclusively to officers of the customs. The act of 1789 will, I presume, authorize the removal. This, however, depends upon facts of which your communication furnishes no information. If Mr. Alexander be a citizen of another State than Georgia, and the proper steps have been taken, as prescribed by the act, the case seems to be provided for. I do not think that he can transfer the case upon the mere ground of his being an agent in the employment of the Post Office Departinent. I have the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. C. A. WICKLIFFE,

Postmaster General.

CUSTOMS-RECIPROCITY WITH DENMARK

Coffee imported from Rio Janeiro in a Danish vessel is duty free, the same as if imported in

an American vessel. The third article of the treaty of the 26th April, 1826, with Denmark, covers the case, and takes

it out of the prohibition contained in the act of 1st March, 1817. The tariff act of the 3d August, 1842, does not affect the question,

ATTORNEY GENERAL'S OFFICE,

January 11, 1844. Sır: Your communication of the 2d instant submits to me the question of the liability of the cargo of coffee brought into Charleston, South Car. olina, from Rio Janeiro, in the brig Ida, a vessel wholly belonging to subjects of Denmark, to the duty of 20 per cent. levied by the 10th section of the act of 1842. Upon this question I have no doubt. The 3d article of the treaty with Denmark of the 26th of April, 1826, covers the case, takes it out of the operation of the general terms of prohibition used in the act of the 1st March, 1817, and is unaffected by the tariff act of the 31 of August, 1812. Coffee imported in vessels belonging to citizens of the United States being exempt from duty, that brought into the ports of the United States in vessels wholly belonging to Danish subjects is equally free.

My engagements in the Supreme Court will not permit me to assign al large, at this moment, the reasons of my opinion. I will hereafter avail myself of an opportunity to state them. I have the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. John C. SPENCER,

Secretary of the Treasury.

ACCOUNTS FOR POST OFFICE SUITS-HOW TO BE LIQUIDATED.

Costs of suits for the recovery of debts and penalties due the Post Office Department, and

arising under the laws for its government, are payable out of the funds of the department, and not out of the judiciary fund. Wherefore, such accounts should be settled by the Auditor of the Treasury for the Post Office

Department.

ATTORNEY GENERAL'S OFFICE,

January 22, 1844. Sir: I have considered the question suggested in the letter of the Auditor transmitted with your communication of the 13th instant, and am of opinion that the costs and fees due to marshals, clerks, and district attorneys, accruing upon civil suits instituted for the recovery of money due the Post Office Department, or for the recovery of penalties and for: feitures arising under the laws for its government, are payable out of the funds of that department, and not out of the judiciary fund; and that the accounts therefor should be settled by the Auditor of the Treasury for the Post Office Department, and not by the First Auditor of the Treasury.

This opinion is founded upon considerations growing out of the policy clearly indicated by the laws for the organization and regulation of the department, and more especially upon the provisions of the 1st section of the act of the 3d of March, 1825, and the 3d, 14th, 16th, 17th, and 18th sections of the act of the 2d of July, 1836, which, whilst they require that the expenses for the service of the department shall be defrayed out of its own revenues, subject all suits, and the proceedings thereon instituted by its authority, to the supervision and control of its own auditing officers. I have the honor to be, very respectfully, sir, your obedient serva

JNO. NELSON. Hon. C. A. WICKLIFFE,

Postmaster General.

RATE OF POSTAGE CHARGEABLE ON BANK-NOTE LISTS.

The New York Bank-Note List is a pamphlet within the meaning of the act of 1825, and

should be rated as such. A pamphlet is defined to be a sheet or sheets of paper stitched together in the form of a book,

but not bound

ATTORNEY GENERAL'S OFFICE,

January 22, 1844. Sır: I am not a little embarrassed by the question propounded in your communication of the 13th instant as to the character of the publication by which it is accompanied. Whether the Bank-Note List be a pamphlet or a newspaper is rather a question of fact than of law, and may be much more satisfactorily decided by a publisher than by a lawyer. That decided, the law of '1825 is free from all ambiguity. The acts of Congress furnish no definition of a pamphlet as contradistinguished from a newspaper. Nor have we any judicial exposition of the terms to which a safe reference may be made for the solution of the difficulty. All that is left, therefore, to guide us in the interpretation of the provisions of the statutes is to ascertain the generally understood import of the terms used in them, and to conform the construction to that common understanding. The lexicographers, to only two of which I have the means of reference, affix to the term “pamphlet” a very clear and unambiguous signification. Noah Webster, in his American Dictionary, defines it to be “a small book, consisting of a sheet of paper, or of sheets stitched together, but not bound.” And Charles Richardson, in his valuable work published in London in 1839, in reference to the etymology of the term, refers it to par un filet, as if held together by a thread;

pagina filata, a threaded page, stitched together with thread.”

Now, if these definitions be just, it is quite clear that the publication in question is a pamphlet, and liable to the rate of postage to which it has been subjected hy the department. And it would seem that the publishers of the List have themselves so understood the term; for upon the outer page of the publication of the 15th of the present month they designate it as “this pamphlet.” Upon the whole, whilst disclaiming any such familiarity with the subject as will enable me to give a satisfactory opinion upon the question of fact involved in it, I think that this Bank Note List is a pamphlet within the meaning of the act of 1825, and not a newspaper. I have the honor to be, very respectfully, sir, your obedient servant,

JNO. NELSON. Hon. C. A. WICKLIFFE,

Postmaster General.

DEMAND OF PAYMENT NOT PREREQUISITE TO SUITS AGAINST DE

FAULTING POSTMASTERS.

No preliminary demand of payment is necessary to put in default a postmaster who omits to

pay over the public funds in his hands at the expiration of each successive quarter of his service, and no proof of such demand having been made is requisite to the sustaining of an action against him. The opinion imputed to Judge Wells cannot be sustained.

ATTORNEY GENERAL'S OFFICE,

January 22, 1844. Sur: I should have replied more promptly to the inquiry contained in your communication of the 9th instant, but for my engagements in the Supreme Court, now in session. The question to which it refers is, I think, free from difficulty. It is quite clear, under the provisions of the laws for the government of the Post Office Department, that no preliminary demand of payment is necessary to put in default a postmaster omitting to pay over the public funds in his hands at the expiration of each successive quarter of his service; and that no proof of such demands having

been made is requisite to sustain an action against him. The opinion imputed to Judge Wells, in my opinion, cannot be sustained.

The reasons upon which this opinion is founded I have not the leisure now to assign; but if at any time hereafter desired, I will cheerfully communicate them. It may, however, be prudent to consider, whether, to avoid all future embarrassment, and to save the necessity of bringing this question before the Supreme Court for ultimate decision, a procedure unavoidably attended with expense and inconvenience, it would not be advisable to incorporate into any law in relation to the Post Office De. partment that may be passed by Congress at its present session, a declaratory clause. It would serve to prevent litigation, and to avoid difficulty and delay in the collection of the debts due to the department. I have the honor to be, very respectfully, sir, your obedient servant,

JOHN NELSON. Hon. C. A. WICKLIFFE,

Postmaster General.

RATIONS OF SUBALTERNS NOT PERFORMING STAFF DUTIES.

Under no circumstances can a subaltern claim the additional ration given by the act of 1827,

whether as commanding officer or otherwise, whilst receiving compensation for the performance of staff duties.

ATTORNEY GENERAL'S OFFICE,

January 23, 1844. Sır: The case of Captain Maynadier presents no difficulty to my mind. It is covered by the very terms of the proviso of the act of 1827, and is in principle precisely that of Lieutenant Williamson, upon which the opinion of Mr. Butler was given in 1834. The additional ration above three is given by the act of 1827, and must be taken subject to the condition prescribed by its proviso. I read the first section of the act thus: “That from and after the passing of this act, each captain and subaltern in the army who shall not be in the performance of any staff duty, shall be allowed one additional ration;" which implies that such as are in the performance of staff duties shall not receive the additional ration. Be. fore the passage of the act of 1827, a subaltern was entitled to three rations. When employed in the discharge of staff duties after the passage of that act, he was entitled to the same number of rations, viz: three. The regulations allowed him as commanding officer of a separate post, not four rations in addition to the number prescribed by law, but double the number to which he was entitled; which was, of course, six.

Under no circumstances can á subaltern claim the additional ration given by the act of 1827, whether as commanding officer or otherwise, whilst receiving compensation for the performance of staff duties. The very purpose of the proviso was to except from the operation of the grant, officers in the predicament of the present claimant. I do not think the claim should be allowed. I have the honor to be, very respectfully, sir, your obedient servant,

JOHN NELSON. Hon. JAMES M. PORTER,

Secretary of War.

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