the recruit shall have joined, for duty, the regiment in which he is to

serve."

Further illustration is unnecessary to prove, what must be generally admitted, that both sections of that act apply to the men as privates to be recruited in the several corps included in its provisions; and that it is confined exclusively to the recruit, without making any provisions whatever for the re enlistment of the non commissioned officers, musicians, or private soldiers specified in the act of 1838. The sixteenth section of the last named act provides that, " from and after the passage of this act, all enlistments in the army of the United States shall be for five years." By the twenty-ninth section, it is enacted, " that, in lieu of the bounty now provided by law for re enlistment, every able-bodied non-commissioned officer, musician, or private soldier, who may re enlist into his company or regiment, within two months before or one month after the expiration of his term of service, shall receive three months' extra pay." This provision embraces a class of men already recognised by law as non-commissioned officers, musicians, and private soldiers, and as be. longing to particular companies and regiments; and, as such, are encouraged to renew their contract of service in the army, with a proffer of an extra reward. The intention of Congress is manifest-it was, by a suitable reward, to induce a class of trained and experienced men to continue in the army for a further term of five years. Congress has fixed the reward, and the terms upon which it may be allowed. The two statutes are perfectly consistent and reconcilable with each other; each was made to accomplish a distinct and valuable purpose. By the law of 1838, the term of service was peremptorily fixed at five years; but the recruit could receive no compensation till his service commenced--he was entitled to no bounty; while the non commissioned officer, musician, or private soldier, who had served out one term of five years, by re eulisting for a further term, became entitled to three months' extra pay. By the law of 1847, the recruit, whether for five years or during the war, is allowed a bounty of twelve dollars, while the law regulating re enlistment remains unchanged. Every able-bodied non-commissioned officer, musician, or private soldier, may, within two months before or one month. after the expiration of his term of service, as heretofore, by re-eir listing for the term of five years, become entitled to the three months' extra pay; but if he decline to re-enlist, choosing to waive the benefit to be derived from renewing his old contract for another similar term-preferring rather to make a new stipulation by enlisting for a different term for the period during the war, under the recent statute-then he is entitled to the bounty of twelve dollars as a recruit, and no more. In the latter case, it is not a re enlistment, within the meaning of the law of 1838, because it is not a new contract for the term of service required by that law in other words, it is an enlistment, and not a re-enlistment. The three months' extra pay is based upon a renewal of the contract of service for the term of five years. Such is the plain import of the language employed by Congress, which cannot be changed, in my opinion, by any construction whatever, without doing violence to the letter and spirit of the act of 1838. The act of this session, before recited, while it authorizes a new term of service for the recruit during the limited period of the existing war, and confers upon him the right to elect between the two terms of enlistment, repeals no part of the prior general

law presenting the terms of re enlistment necessary to be complied with to secure the right to the three months' extra pay. Any citizen may enlist for five years, as heretofore; and all those in service under contract for that term, coming within the conditions of the twenty-ninth section, (that is, within two months before or one month after the expiration of their term of service,) may re-enlist and receive the bounty of three months' extra pay; but if any one prefers to avail himself of the provisions of the recent statute, by enlisting for the period during the war, he must be content with the bounty annexed to that term of service. I have the honor to be, very respectfully, sir, your obedient servant, NATHAN CLIFFORD.

To the SECRETARY OF WAR.

RIGHT OF THE BANK OF THE METROPOLIS TO PAYMENT OF A DRAFT. The Bank of the Metropolis is entitled to payment of a draft drawn by a contractor for removing Miami Indians to the country assigned them west of the Mississippi upon the Secretary of War, and accepted, payable from the contract moneys, and thereafter transferred to said bank, notwithstanding subsequent assignments of the moneys due upon said contract; such draft being a prior equitable assignment of the moneys to become due, and made with the knowledge and consent of the Secretary of War.

ATTORNEY GENERAL'S OFFICE,

January 15, 1847.

SIR: I have the honor to acknowledge the receipt of the papers transmitted to you by the Second Auditor, relating to certain conflicting claims to the sum of six thousand dollars, constituting a part of the contract price to be paid for the removal and subsistence of the Miami tribe of Indians, on which you request my opinion. By those papers it appears that on the 6th of May, 1844, Thomas Dowling, of the State of Indiana, entered into articles of agreement with the United States, which were duly executed by him and by the Commissioner of Indian Affairs in be half of the government, wherein the said Dowling promised and agreed to emigrate the Miami tribe of Indians to the country assigned them west of the Mississippi, and to subsist them for the period of one year after their arrival at their new homes; all of which is particularly set forth in the articles of agreement aforesaid. The United States on their part, in consideration of the premises, agreed to pay to Dowling the sum of fiftyfive thousand dollars, which, computing the number of Indians at six hundred and fifty souls, would be at the rate of $84 61 per head. Should, however, the number be greater or less, there was to be no additional allowance or deduction. The agreement further provides that, "to cover the cost of emigration as near as can be, a proper proportion of the said sum of $55,000 estimated by the department, to be paid to the said Thomas Dowling, after a muster-roll of the said Indians shall be received at the department, with a receipt thereon endorsed or written, specifying that the said Indians have been delivered to and received by the agent or officer who shall be designated by the department to receive and receipt for them."

On the 7th of May, the day following the execution of the articles of agreement, Dowling, the contractor, drew the following order upon the War Department:

["$6.000.] WASHINGTON, May 7, 1844. "Please pay to the order of William Robinson, jr., six thousand dollars, value received, on account of my contract dated 6th May, 1844, for collecting, transporting, and supplying the Miami Indians.

"THOMAS DOWLING.

<< To the WAR DEPARTMENT, Washington."

Mr. Wilkins, then Secretary of War, accepted the draft upon presentation, and thereby acknowledged notice of it, and assented to it, as follows:

"WAR DEPARTMENT, May 11, 1844.

"I accept the above draft, to be paid in six months from this date, the amount to be charged on account of the contract referred to in the draft. "WM. WILKINS,

"Secretary of War."

Robinson transferred the draft to the Bank of the Metropolis, one of the claimants in the present controversy; the bank advanced the amount, and now hold the draft by virtue of Robinson's endorsement to their cashier, as follows:

"Pay the within acceptance to Richard Smith, cashier, or order, for value received.

"W. ROBINSON, Jr."

No time is specified in the agreement, within which the Indians were to be removed; the only mention in relation to this point being a recital in the preamble, which states Dowling's proposal to be, "that he will remove the said tribe during the present season if practicable." The Indians not having been removed at the expiration of the six months from the date of Mr. Wilkins's acceptance of the draft, no money was paid by the department. On the 1st of March, 1845, Mr. Wilkins, then about to retire from the office of Secretary of War, addressed a letter to the Commissioner of Indian Affairs, requesting him to "pay to Mr. Smith, cashier of the bank, the sum of $6,000, out of the very first money which shall be payable upon the contract with this department by Thomas Dowling of the 6th day of May last, for the removal and subsistence of the Miami Indians from the State of Indiana; the said sum being for the amount of, and intended to meet, a draft upon me, drawn by the said Thomas Dowling in favor of Wm. Robinson, jr., upon the account of the above mentioned contract." By the papers transmitted, it further appears that on the 30th day of October, 1844, an agreement was entered into between Dowling and Robert Peebles, by which the former agreed to "assign to said Peebles, his heirs and assigns, all the rights, interests, and profits of a certain contract made with the government of the United States on the 6th of May, 1844, assigned by T. H. Crawford, Commissioner of Indian Affairs, for the removal of the Miami Indians, under the treaty of 1840." By this agreement it also appears that the interest thus assigned to Peebles was one third of the contract; the other two thirds being held by N. M. Miller and Geo. H. Penfield. On the 7th day of November, 1844, Dowling also executed an irrevocable power of attorney in favor of Peebles. These papers were transmitted to the Secretary of War by Peebles, in a

letter dated 20th November, 1844, with a request that they might be filed in the department. It further appears that Mr. Peebles also acquired the interest of Miller and Penfield in the contract, and subsequently that he entered into agreements with various individuals to transfer some portion of his interest to them; never, however, parting with the whole.

The emigration of the Indians was not effected until the last year. There is now produced to the department a certificate dated 5th Novem ber, 1846, signed by Alfred J. Vaughan, the sub-agent on Osage river, certifying that three hundred and twenty three Indians had been placed under his charge by Joseph Sinclair, the superintendent of emigration; these Indians having been emigrated from Indiana by Alexander Coquil lard, one of the assignees of the contract. Sinclair, the superintendent of the emigrants, further certifies, on the 9th November, 1846, that Coquil lard and the other assignees had faithfully complied with the contract for emigration. It appears, however, from the remarks of the Commissioner of Indian Affairs on the account rendered against the United States, that thirty of the Indians are still east of the Mississippi, having been permitted to remain to gather their crops.

Under these circumstances, Mr. Peebles, and certain persons claiming under Dowling and him, demand payment of that portion of the contract price payable for the emigration. The Bank of the Metropolis also claim payment of the six thousand dollars advanced by them upon the draft of the original contractor, to which all of the assignees object. Some of these, however, also claim that if it is paid by the government to the bank, it shall form a charge exclusively against the interest which Mr. Peebles has in the agreement.

The question submitted by the Second Auditor, on which you request my opinion, seems to be whether the bank is entitled to payment of the $6,000, or whether the other assignees should receive the whole sum pay. able under the contract. This is a question of strict law, and as such I have examined it with the aid of able counsel-Mr. Bibb in behalf of Peebles, and Mr. Coxe in behalf of the bank. Peebles claims the whole amount due by virtue of an assignment of the contract, in the manner above stated. The bank maintains that the draft of the 7th of May, 1844, operated as a prior assignment to them of so much of the interest of Dow ling; and that Peebles became assignee subject to all equities. Both par ties, therefore, claim as equitable assignees, and neither is disposed, as appears from the arguments, to draw in question the doctrine which takes notice of equitable assignments, and protects and enforces the rights grow ing out of the same, though they differ widely in their view of its appli cation to the facts of the case.

That such assignments, when made in good faith and for a valuable consideration, are entitled to protection in a court of equity, is too firmly established both in England and in this country to admit of a doubt. This point has been well argued by the counsel for Peebles, and the authorities cited fully sustain the position.-(Chitty on Bills, pages 8 and 9, and note.) What, then, is the character of the instrument under which the bank claims, and what is its legal effect? In the first place, I hold it to be clear law that it is not a bill of exchange, being drawn upon a parti cular fund.-(2 Lord Raymond, 1361; 2 Wheaton, 238; 1 Chitty on Bills, 152; 2 Bayly on Bills, 14; 3 Story on Bills, p. 46.) Certainty is an essential quality of a bill of exchange. It must be for the payment of money

only, and it is requisite that such payment be absolute and not contingent, either as to amount, event, fund, or person. The law has rendered these qualities essential to secure certainty and precision in mercantile affairs. If, then, it be not a bill of exchange, how does it affect the rights of the parties in this case? It is an order to pay money, and was in the form of a bill of exchange, except that it is made payable out of a particular fund. It undoubtedly operated, when accepted by Mr. Wilkins, as an assignment, to the amount of its contents, of the fund upon which it was drawn. It did not bind the government to pay at all events, because such was not the character of the instrument. It was drawn upon a contract yet to be fulfilled, but the obligation became fixed to pay when the services were rendered.

The language of the Supreme Court in Mandeville vs. Welch, (5 Wheat., 286,) fully sustains this view of the case. Mr. Justice Story, in delivering the opinion, remarks: "It is said that a bill of exchange is in theory an assignment to the payee of a debt due from the drawee to the drawer. This is undoubtedly true when the bill has been accepted, whether it be drawn on general funds or a specific fund, whether the bill be in its own nature negotiable or not; for in such a case the acceptor by his assent binds and appropriates the funds for the use of the payee," &c.

In the leading case of Rose vs. Dawson, (1 Vesey, 331,) where certain persons lent money to one Gibson, who made a draft on Swinburne, the deputy of Horace Walpole, as follows: "out of the money due to me from Horace Walpole, out of the exchequer, and what will be due at Michaelmas, pay to Tonson £400, and to Cowdrey £200, value re. ceived,"-Lord Hardwick ruled "that it was an agreement for a valuable consideration beforehand to lend money on the faith of being satisfied out of this fund; which makes it a very strong case. If this is not a bill of exchange, nor a proceeding on the personal credit of Swinburne or Gib. son, it is a credit on this fund, and must amount to an assignment of so much of the debt; and though the law does not admit of an assignment of a chose in action, this court does; and any words will do-no particular words being necessary thereto. * * * This draft, which amounts to an assignment, is deposited with the officer Swinburne, and therefore is attached immediately upon it, so that Swinburne could not have paid this money to Gibson without making himself liable to the defendants; because he would have paid it with full notice of this assignment for valuable consideration. (See, also, Smith vs. Everett, 4 Browns, chap. 64; Morton vs. Naylor, 1 Hill's N. Y. Reports, 584; Tiernan vs. Jackson, 5 Peters, 598; 2 Story's Equity, 1047.)

The government assented to this equitable assignment, and by that assent recognised the right of the bank to receive this portion of the money to be paid under the contract. The assignment held by the bank being prior in point of time to that under which Peebles claims, carries the fund to the extent assigned in preference. The assignment in favor of Peebles was taken subject to all the equities between the government and Dowling, and the previous assignment was one of these equities. This is familiar law, and requires no illustration. But it is contended that Peebles had no notice of the draft held by the bank at the time the assignment in his favor was executed. In my opinion it is immaterial whether he knew of the previous assignment of part of the fund or not, so far as between him and the bank; but it was his duty to inquire, and